Are participants fit to participate in a workplace investigation?

Tanya Hunter
October 16, 2019

Although everyone at Worklogic approaches the workplace investigation process mindful of the well-being of participants, the process itself can contribute to the stress all parties feel.

Both making a workplace complaint and facing allegations of misconduct can be confronting. And with employer-led complaints, employees who have raised concerns are sometimes reluctant participants.

Before an investigation ever begins, the wellbeing of the parties may be an issue. So, how can investigators ensure that parties are fit to be interviewed and participate fully in the process?  And what accommodations  need to be made when issues of mental fitness have been raised?

1. Make the interview itself a non-intimidating process

The interview is often the most stressful part of an investigation for participants.  Think creatively and sensitively about the interview process. There are quite a few strategies to make the interview process less stressful for participants, while maintaining the integrity of the interview process.  Some of these are:

  • Making sure that all parties to an investigation are offered support. Most employers have an EAP and offer this support to employees when workplace concerns are raised, but tell all participants that they can and should seek support if an investigation or surrounding issues are impacting their mental health.
  • Reiterating to all participants that they can bring a support person to the interview. This information is included in Worklogic’s investigation guide provided to all participants.
  • In the interview itself, making sure that everyone knows they can take a break at any time, and offer a break if they appear upset or agitated. Also make sure that you provide a box of tissues and offer water and tea and coffee to help make the process more comfortable.  
  • The place where the interview is held can be important for participants who are vulnerable to stress. Consider allowing participants to be interviewed in a neutral place away from their work, or scheduling the interview at a place closer to home to minimize the stress of finding an unfamiliar place before the interview.
  • Another strategy for managing participant stress is allowing interviewees to visit the interviewer and interview room to get a feel for the process prior to the interview.
  • If a long interview is necessary, consider conducting it over several sessions, bearing in mind that some people may prefer to “just get it over with” in a longer interview. Be sensitive to the needs of the participants, while respecting procedural fairness.

2. Explore alternative strategies

When you are aware prior to an interview that issues of mental fitness have been raised and risks of harm seem particularly high, investigators should explore alternative strategies:

  • Confirm with the participant and your instructor that the person is fit to proceed. If the participant has told you that they do not feel able to take part due to mental health issues, discuss this with your instructor and discuss the need to balance issues of timeliness and procedural fairness with the participant’s well-being. 
  • If the person is currently undergoing treatment for mental health issues, consider asking the instructor to obtain a letter from their treating mental health professional stating that they are fit to participate in the process and that their participation will not create further mental health issues. This does require that the participant consent to the instructor seeking a letter from their treating professional.
  • If the treating professional cannot provide a letter regarding fitness, discuss with your instructor the feasibility of delaying the interview or investigation or proceeding without the participant, if doing so does not compromise natural justice and procedural fairness.
  • If the instructor is able to obtain a fitness letter, conduct the interview as sensitively as possible, and remind the participant at the end of the interview that they should seek support if the interview has raised any issues for them. 
  • Discuss with your instructor what actually needs to be investigated. Consider dropping minor allegations to reduce the impact on participants.
  • Check in with participants before sending contradictory evidence to ensure they have supports in place, as reviewing evidence can be a challenging part of the process because participants are addressing any evidence which is not consistent with their version of events.

It is the responsibility of the employer to manage risks around mental health. Investigators need to  keep the employer informed if you feel that any participant in an investigation is not fit to participate or that their continued participation will create risks to their mental health.

Conducting an effective workplace investigation

If you would like to learn more about how to conduct a fair and effective workplace investigation, then come to our upcoming one day intensive training course “Conducting Effective Investigations”, in Melbourne on November 7 and Brisbane on November 22 – or talk to us about running this training in-house. Participants will also receive a free copy of our Workplace Investigations book, published by Wolters Kluwer.

About Tanya Hunter

Tanya Hunter, Worklogic

Tanya Hunter applies a sensitive approach to working with vulnerable clients and people from culturally and linguistically diverse backgrounds, and astute understanding of legislative and compliance frameworks and enterprise agreements. 

She brings a balanced, impartial approach to the entire process from preliminary analysis of complaints to conducting investigations, creating productive policy guidance and solutions and implementing change projects.

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