Jun 02

Determining the scope of your investigation – what to do if you to have too many allegations.

Commonly employees present complaint documents which describe the alleged behaviour in broad terms (“I have been subject to constant bullying behaviour”), employing emotive language to describe the behaviour and the impact that it has had on them.  Whilst this is to be anticipated and is perfectly reasonable way to raise a workplace complaint, that document does not set the scope for the investigation that might follow.  Your scope document is the allegations that arise from that workplace complaint. 

As my colleague Tom Henry set out in his post last year, having a clear and concise statement of allegations is critical step in providing natural justice to the parties. Good allegations set out the complainant’s version of what is alleged to have occurred, detailing specific examples of the behaviour.  Clearly articulated allegations have the added benefit of making your life easier too – it is much more straight forward to make finding of fact, for example, about what was said (or yelled) in a meeting about suppliers in the boardroom on level 2 in April 2021, than it is to conclude about whether a manager “is always condescending” in the way they speak to staff.  In drafting allegations then, it is important to drill down to the detail with the complainant to get as many particulars as possible about the conduct alleged.   

Assuming you’ve got beautifully drafted allegations, what to do when you’ve got, 20, 30 or more?  The reality is that time and cost will prohibit investigation of all of them. How do you manage large numbers of allegations? I find that turning your mind to the following factors assists in working out which allegations to include within the scope of your investigation.

Ask yourself, if this matter was proven, what would I be required to do about it?  As a rule of thumb, the more serious the alleged conduct, the more serious the consequences if it is proven.  It is common sense that any allegations which might involve serious misconduct should be prioritised and included within the scope of the investigation.  Most Workplace Behaviour policies will require such allegations to be investigated.    

Noting that bullying allegations involve repeated examples of unreasonable behaviour, it’s important to assess such allegations through two lenses.  Firstly, consider whether an allegation, as an individual incident, would be considered unreasonable.  It is important then to consider the alleged examples as a whole.  It is possible that that behaviour that is considered reasonable of itself, may be considered unreasonable when viewed in light of other examples of proven behaviour.  In this context, in cases where bullying behaviour is alleged you might consider selecting one of a number of allegations of the same or similar behaviour.  There is limited benefit to investigating 5 separate incidents of the respondent making disparaging comments about the complainant, when investigating 3 of the more serious and more recent of those examples, would result in the same consequence should the allegations be proven.

In the case where you are faced with many allegations, you might choose to seek to resolve less serious matters through other types of intervention.  For example, allegations which if proven, demonstrate less than ideal managerial behaviour (a lack of empathy or insight for example) but would not be considered behavioural misconduct, might not require investigation and be more appropriately resolved by a discussion between the parties and some one-on-one training.   

In the absence of allegations fraud or similar type behaviour, allegations that involve managerial decision making which the complainant might disagree with should not generally be the subject of workplace investigation.  This is sometimes difficult to distinguish as complainants often perceive some decision making to be targeted, undermining behaviour.  In such circumstances, it is our experience that it is more expedient for an internal independent person, with knowledge of the particular team or group, to undertake a review of those decisions.

The age of the allegations may be another relevant consideration.  You might consider focusing on the more recent allegations only.  Stale allegations that relate to conduct dating back some years before, are notoriously difficult to investigate.  Over time witness recollection of events has usually faded and can potentially be impacted by discussions with others, such that it is difficult to be sure that you obtain an independent recollection based on what people have observed. 

An important qualification here is that old allegations that concern serious misconduct should, generally speaking, be investigated.  Even if some workplace policies place restrictions on whether ‘aged’ complaints can be pursued, it is important to apply common sense.  Even if relevant policies do not impose an obligation to investigate, you might later be required to investigate an aged allegation of serious misconduct if the complainant goes on to make a WorkCover or similar claim.  Old allegations should be considered on a case-by-case basis.

As a final matter, it is important that you keep the complainant up to date about the scope of the investigation.  Understandably, complainants will be concerned about any narrowing of the scope of the investigation, because they view all examples they provide as reinforcing the strength of their complaint.  It is important to remember however, that determining the scope of the investigation is the employer’s role.  If, after considering all of the circumstances, the employer does not need to determine all allegations to enable it to make a reliable and defensible decision about any proven conduct, then you should be confident to determine the investigation’s scope, taking into account all of the factor’s discussed above.

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