Sep 23

When it comes to investigation allegations against senior staff, how accountable are you?

Depending on whether you are a fan of Voltaire or Spiderman (or, of course, both!), you will no doubt be familiar with that time-honoured phrase: “With great power comes great responsibility”.

But responsibility alone is now no longer enough. Every week, it seems, another media headline heralds a regulatory inquiry, legal case or shareholder push into a lapse in standards, ethics and values at the very apex of an organisation.

The current zeitgeist is therefore one of increased scrutiny for those at the top. And so, to update that phrase a little: “With great power comes great accountability”.

A key test of whether a workplace is demonstrating true accountability, at all levels, is how effectively that workplace investigates senior individuals in an organisation who have allegedly misused their power over others.

What happens in your organisation, for instance, when it becomes aware of allegations of misconduct regarding a senior manager, the CEO, a board member, or the Chairperson?

In our experience, how well you are faring in ensuring accountability for all, regardless of rank, often depends on how well your workplace decides, and manages, the following:

  • whether it will investigate;
  • what it will investigate;
  • who will undertake the investigation;
  • how it will investigate; and
  • depending on the findings of the investigation, the subsequent decision-making process.

The quality of your workplace’s decisions and actions here will demonstrate the calibre of your organisation’s ethics, values, competency, risk-management and/or governance framework.

Whether the organisation will investigate

Policies on behavioural standards must firstly be comprehensive and inclusively apply to all. Beyond that, there needs to be investigation and dispute resolution approaches which are also binding and apply to everyone at all levels. Be aware of a policy that has a gaping hole, ‘radio silence’, or meandering vagueness when it comes to the complaint resolution obligations and standards expected at the CEO and/or board member level, including the Chairperson.

Culture here plays a significant role, as does the concept of ‘truth to power’.

Unfortunately, where a workplace suffers from a culture of hierarchical invincibility, that is, say, any allegation of misconduct concerning a member of the executive team, or a board member, is viewed as without any substance whatsoever solely based on that person’s senior role, then the decision not to investigate is clearly problematic – on many levels.

An all too frequent variation on this theme, is, once an allegation has arisen, and it is possibly suspected that the senior respondent has some sort of ‘form; but is lauded as ‘the rainmaker’, they are automatically immune from any (significant) scrutiny by means of an investigation. Such a mentality not only demonstrates a lack of accountability, and organisational values that are completely missing in action, but invites manifest legal risks too.

What and how the organisation will investigate

Whilst consistency may not have always been lauded by that American essayist Ralph Waldo Emerson, it is absolutely vital to be consistent when it comes to approaching investigation scope.

It may be that the workplace decides to proceed with the investigation. But then, somehow, along the way, the scope is inexplicably reduced, leaving only a few trivial or minor issues to be examined. Such a tokenistic investigation will not demonstrate a commitment to upholding organisational values, and certainly corrode a workplace culture further once known.

Related to this is consistency of approach, at all the ongoing steps of the investigation process. This includes ensuring and abiding by all the principles of procedural fairness, including transparency of process, providing a support person, and timely communication and delivery of the investigation.

Support needs to be provided not only to the respondent, who may not have been involved in an investigation before and may be feeling shocked and upset about accusations made against them, but also to employees who are witnesses and/or complainant/s. This situation will call for a degree of calm, equilibrium and large dollops of emotional intelligence, to ensure that you approach and communicate with everyone consistently and fairly whilst the investigation is conducted.

Who will undertake the investigation

As per usual, you must conduct any investigation without any suggestion of bias affecting it, as well as in a confidential and discreet manner. This is particularly so where reputational risk is potentially in the mix.

When it comes to investigating allegations of misconduct at senior levels, it is often prudent to engage an external investigator to manage risk, and ensure no perception of coercion or bias that might ensue if an internal investigator from lower down ‘in the ranks’ had ran the matter.

Connected to this, the organisation will need to identify who, within the organisation, and at what level, is to be the relevant instructor of the external investigator.

The instructor needs to be someone who is able to act without any perception of bias, or be under any undue influence from the respondent due to respective seniority of roles.

So, for example, it is best to appoint a board member, or say, an independent sub-committee to the board, who may be the instructor of the independent investigator, in cases where the respondent is the CEO, and/or another board member, rather than the HR Manager or Business Partner as instructor.

In relation to when legal professional privilege may apply for the investigation report created, you will similarly need to consider who is appointing the investigator, and for what purpose.

Any subsequent decision-making process

The principle here to follow is ‘avoid multiple hats’. Depending on who may be directly instructing the independent investigator, the workplace needs to then have a different person or group or people who are the subsequent decision-makers on actions following the report.

Where, for example, any board member is involved as instructor, it is important that they are not party to subsequent decisions at board level regarding any decision regarding disciplinary action, once an investigation is completed.

Such a board member may leave the relevant board meeting, with this duly documented, if an agenda item concerns this.

Living a culture of fairness and accountability

Investigations “at the top” certainly can carry more career and reputational risk, stress and ramifications for not only those concerned, but for the workplace more generally.

Make sure you take steps to consistently hold all accountable in your workplace, and, that you can truly show, if and as needed, that your investigation methodology is consistently applied. A lived culture of fairness and accountability will always stand you and your organisation in good stead.

Ask us Anything About Workplace Investigations Webinar

Register now to join Worklogic’s Sydney crew at our September 24 webinar, “Ask us Anything About Workplace Investigations“.

Jason ClarkMelanie Roberts and Marc Dib will draw on their decades of experience conducting workplace investigations into allegations of every kind of workplace misconduct in all types of settings to answer your burning questions.

About Grevis Beard

Grevis Beard, Worklogic Director, is a highly experienced and widely respected author, dynamic speaker and trainer, and workplace investigator.

Grevis speaks knowledgeably and diplomatically on how to resolve workplace conflict, manage people risk and build a positive culture at work based on his extensive experience as a lawyer and workplace investigator. Grevis delivers a comprehensive range of in-house training programs designed to help organisations resolve workplace  complaints and create a positive culture at work. 

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