Apr 17

What to do with the workplace investigation report? Balancing privacy and transparency

It is standard for workplace investigations to be documented in a written investigation report. There are many good reasons for doing so.

A well-structured, logical and comprehensively written report will record:

  • What the investigation process was, and in doing so demonstrates that it was a fair and rigorous process;
  • The evidence that the investigator collected during that process is also identified; and,
  • The analysis is fully noted too, which underpinned the findings of fact.

Such transparency and clarity will ensure that the recipient of the report is comfortable that the investigation is fair, rigorous and reliable.

At the same time, however, the subject-matter of investigations will frequently involve sensitive, embarrassing or offensive material, and reveal less-than-ideal interpersonal dynamics or dysfunctional workplace culture.

How do you balance these tensions between privacy and transparency?

Firstly, be clear about what and how the report comes into existence.

Sometimes, if you are seeking legal advice about an alleged workplace scenario, because the subject-matter involves senior managers or has high-risk” written all over it, then the report itself may be protected from disclosure generally (if court or tribunal proceedings arise).

In any event, when you are instructing an investigator to to conduct an investigation it is worthwhile confirming how much detail and structure you want the report to have, and in particular, if you want more than one report to be produced.

For example, creating an ‘executive summary’ report can be a useful way of setting out the findings of fact, with or without analysis included. The executive summary report can then be provided to other parties (for example risk, compliance and other HR officers) as required.

Bear in mind too that if a report is for a public body, it may be subject to Freedom of Information application.

But regardless of what particular scrutiny the report may come under, whether internally, or for example, as part of an anti-bullying application at the Fair Work Commission, it is always important to ensure that the language is apposite and proportionate, and scrupulously independent.

Are the complainant and respondent entitled to receive the investigation report?

Generally speaking, it is best to focus on what the parties need to be informed about as a result of the report, rather than providing the full report – unless of course there is some overwhelming reason to do so. The exception may be where the organisation’s investigation process or enterprise agreement or contract of employment obliges the employer to provide either the draft investigation or finalised investigation report to the parties, or at least to a respondent, as part of the investigation process or outcome.

As a rule of thumb, the parties need to be informed about the investigation findings, and, if it is helpful and constructive, the investigator’s reasoning for why those findings were made. An executive summary report can be deftly used to communicate such information to both parties.

It is also very useful to consider what information may actually be less than helpful for these two parties to receive.

Inflammatory, highly judgmental or other information (along the lines of “I don’t want to work with him/her”) is best left ‘behind the curtain’.

If you have conducted a full investigation, then contradictory evidence which is relevant for both parties to receive will already have been provided. So, whilst you might be focussed on what to tell the parties, in fact, the outcomes may not be as surprising for the complainant or respondent if they have previously received all relevant evidence.

More globally, witnesses only need to be thanked for their participation in an investigation. Curiosity as to what happened is not a basis for needing to explain findings to any participant in the process other than the complainant and respondent.

How should the information should be delivered?

Best practice would suggest that it is not just the delivery, but the mode of delivery, which is crucial to supporting the complainant and respondent. This can be an emotionally intense and sometimes upsetting time, depending on the workplace culture, broader context and conflict which may exist.

Consider if a one-to-one meeting , or rather an email, will best work for those involved. Think about whether there is a person who may be available to help support those receiving findings.

Finally, think carefully about what the themes of the overall evidence and/or findings were. These will help you to identify what you now need to do in order to restore, improve or consolidate future working relationships. An informal facilitated discussion (or a mediation, depending on the gravity of the matter) can frequently assist with mending miscommunication or misunderstanding.

Thinking carefully about these issues, discussing them with your investigator at the beginning of the investigation and agreeing a clear approach will help ensure that you can most effectively utilise the report to ensure a safe and productive workplace for all.

About Melanie Roberts

Melanie Roberts is an experienced workplace investigator and a nationally accredited 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, 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 Melaniefor an obligation-free, confidential discussion on how to manage workplace conflict.

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