Organisations and Investigators have a number of decision points when investigating employee conflict or complaint. By making sure that they are aware of these decision points, and ensuring that timely, well informed decisions are made, the organisation has the best chance of ensuring that the conflict is managed smoothly, efficiently and in the best interests of the business.
There are three distinct decision makers in an investigation:
- The Manager of the employee where the complaint or conflict has arisen;
- The Investigator whose task it is to make findings of fact in relation to the allegations; and
- The Decision Maker whose role it is to decide whether there has been a breach of policy and what the consequences should be if the allegations have been proven.
Milestone One: Triage Initiating Complaint or Conflict
What: Initial inquiries into the complaint made or the conflict that has arisen. Triage the complaint to decide:
- What is the nature of the complaint or conflict?
- What is potential risk to the business?
- Who is involved?
- What is the best way forward? Sometimes this will not be clear, and the Manager will need to make (or ask an external consultant to make) a preliminary assessment of the complaint or conflict so that the Manager may make an informed decision on the best way forward.
- Who is the best person to conduct the investigation or other intervention?
Milestone Two: Drafting Allegations
What: Distill the complaint or conflict into clear, precise, objective descriptions of behaviour.
If the Manager has made a decision that an investigation is warranted, the next important milestone is to draft the investigator’s understanding of Allegations. Allegations form the foundations of the investigation and are based on the complaint received or the understanding of the conflict that has arisen in the workplace. It is important that some care goes into drafting allegations, the Investigator needs to ensure that procedural fairness is afforded to the Respondent by ensuring that they have enough information to understand the allegations against them.
Milestone Three: Determine Scope of the Investigation
What: Determine which, if any, of the allegations should be investigated.
Once allegations have been drafted, the Manager has an important and often overlooked role. The Manager should consider the allegations and make an active determination on which, if any of the allegations should proceed to investigation and be put to the Respondent for response. Just because an allegation is made, does not mean that the best way to deal with it is to investigate!
It may be that when looking at the allegations made by the complainant that the Manager decides that the best response to these allegations (even if they are proven) is to arrange for all staff training on a particular area. Or it may be that particular workplace policies or systems need an overhaul. Of course, it may be that there are some allegations that, if proven, represent a serious breach of company policy or employment legislation and in that case the manager will make the decision to investigate. The key here is that there is a decision to be made, the organisation is the one responding to the complaint and investigating breaches of its policy.
Milestone Four: Interview Witnesses
What: The Investigator needs to determine who, if anyone, needs to be interviewed in order to gather evidence about the allegations that form the scope of the investigation. The witnesses to be interviewed will depend on a reasonable expectation of whether they are able to give evidence on one or more allegations. Witnesses are not interviewed in case they may have something to say, or as character witnesses for the complainant or the respondent.
Milestone Five: Contradictory Evidence
What: When the Investigator is considering the evidence before them, they need to consider whether any of the evidence that they have considered is:
- Relevant to their findings in relation to one or more of the allegations; and
- Has not been put to the Respondent or Complainant for response.
If this is the case, the Investigator needs to provide the Contradictory Evidence to the Respondent or the Complainant for comment. The fact that the Investigator asked for comment on this evidence should be noted, and any comment on the contradictory evidence should be noted and dealt with in the report.
Milestone Six: Findings in Relation to Allegations
What: Once all of the relevant evidence is gathered and the investigator has provided an opportunity to respond to any contradictory evidence, the investigators responsibility is to analyse and weigh the evidence and make finding in relation to whether the allegations are proven or not proven. The Investigator may also make comment on whether proven conduct is likely to have breached an organisation’s policy.
Milestone Seven: Decision on Consequences
Who: Decision Maker
What: The Decision Maker needs to decide the consequences arising from any of the allegations that are found to be proven. This may include disciplinary action up to and including termination of employment.
Milestone Eight: Getting Back on Track
Who: Manager, Decision Maker and/or Human Resources
What: Once the investigation is over, there is important work to be done in dealing with any repercussions arising from the investigation. There may be training needs that have been identified, a need for relationships to get back on track, for clarification of position descriptions or policies.
Conducting Workplace Investigations – Training
Gain the knowledge and skills you need to conduct an effective, fair and legally sound workplace investigation from Worklogic Director Jodie Fox in this two-day practical training course. Held online on June 4 and 5 from 9.30am – 1.00pm. Register now.
About Jodie Fox
Jodie Fox is passionate about helping people and organisations manage workplace conflict in a productive way. She specialises in workplace investigations, workplace reviews and mediations to address and resolve complaints and foster a positive workplace culture. An experienced employment lawyer, she works with clients from a diverse range of industries providing pragmatic and strategic advice. She is a knowledgeable and engaging writer and speaker.
Please contact Jodie for an obligation free consultation via email or call (03) 9981 6558.