To ensure that an investigation leads to robust and defensible findings it must be based on procedural fairness. An investigation process is like a chain – it is only as strong as each step (or link), and requires all steps to be followed in order to ensure the investigation is procedurally fair.
When a step is not followed or is flawed in some way, then the investigation may be found to be procedurally unfair. To help you avoid this, we’ve put together the following list of common flaws that can arise and provided some practical tips to avoid a flawed workplace investigation.
Typical flaws in a workplace investigation
Allegations must describe the conduct alleged, but not do so using broad, vague or emotive language. Allegations need to be specific and descriptive in order that findings of fact can be made. It is not possible to make findings of fact on the impact of the respondent’s behaviour on the complainant, or statements of emotion from the complainant, so should not be included in the allegation. Evidence in support of an allegation should not be included in the allegation itself.
TIP: Allegations should be drafted in clear and precise language and need to cover: Who, When, Where, What and How.
2. Failing to provide reasonable time to respond
Another flaw is allowing limited time to respond and/or making a decision without the respondent’s response. It may be tempting to want to finalise an investigation as quickly as possible but the respondent must have reasonable time to respond and this may mean delays if the respondent is on sick leave or needs time to find a support person.
TIP: Allow a reasonable time for the respondent to respond and time for them to arrange a support person. Reschedule time if the respondent is not available for a legitimate reason.
3. Failure to consider contradictory evidence
Contradictory evidence is any credible, relevant, and significant evidence that contradicts something that the respondent has asserted. A respondent must be given the opportunity to respond to evidence against them, even where it seem that there is no other possible explanation.
TIP: Identify any evidence that contradicts any participant’s evidence and provide that evidence for response in writing (extracts of transcripts or summary of evidence) or provide a second interview.
Be aware of potential risks to relationships post-investigation (what should and should not be shared).
4. Poor approach to interviews.
There are a number of problems that can arise with interviews. Witnesses that ought to be interviewed may not be interviewed. Witnesses may be interviewed that are not fit to be interviewed. Interviews can be conducted over the telephone in order to expediate the investigation, but this may mean information is lost as there is no opportunity to observe non-verbal communication and it is harder to build rapport.
TIP: Generally speaking, interviews should be conducted face to face. Where witnesses cannot be interviewed in person consider video conferencing rather than the telephone.
5. Failure to inform the respondent of the potential consequences of proven misconduct.
When informing the respondent about the allegations, they should also be informed of the repercussions that might arise should the allegations be proven.
TIP: Ensure that when providing the respondent in writing of the particulars of the allegations against them, that what may occur if the allegations are proven is also made clear.
6. Investigator bias
Investigator bias may be real or perceived. Investigators must act independently throughout the investigation process. Internal investigators run into risk if they know the parties involved, or have friendships within the organisation. In these circumstances there may be a perception that the internal investigator may be biased and not able to objectively conduct the investigation.
TIP: Engage an external investigator who will be viewed as objective so as to avoid real or perceived bias.
Sharpen your skills
If you would like to learn how to conduct a procedurally fair investigation, then register now for Worklogic’s highly-respected “Conducting Effective Workplace Investigations” intensive one-day training course held in Melbourne and Sydney on Wednesday August 28 from 9.30am to 5pm.
Each participant will receive a complimentary copy of our Workplace Investigations book, the definitive guide to conducting an effective workplace investigation. Contact us for special savings when you register more than one person from your organisation.
About Melanie Roberts
Melanie Roberts is an experienced workplace investigator and mediator, with a comprehensive understanding of the complex nature of workplace disputes. Based in Worklogic’s Sydney office, Melanie has extensive experience conducting workplace investigations within the NSW public sector and private enterprise, undertaking a wide range of investigations including allegations of assault, sexual assault, workplace bullying and harassment, sexual harassment, racial and sexual discrimination. She has conducted numerous workplace reviews and is a trained conflict management coach.
Worklogic works with employers to resolve workplace complaints and create a positive culture at work. Please contact Melanie for an obligation-free, confidential discussion on how to manage workplace conflict.
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