Aug 28

5 Common Problems with Drafting Allegations

A well drafted set of allegations forms the basis for a procedurally fair investigation – conversely a badly drafted set of allegations runs the risk of a procedurally unfair investigation.

Allegations need to be drafted in clear and precise language, and be specific and descriptive, in order that findings of fact can be made. Allegations must describe the conduct alleged, but too often allegations are vague, emotive, unclear and poorly particularised.

Common problems with drafting allegations:

1. Vague allegations

Allegations that do not give details about the alleged conduct will mean that a respondent is not able to respond to them, and the investigation is not only procedurally unfair but it will not be possible to conduct the investigation.

Here is an example of a vague allegation:

Susan Jones is always unpleasant to me and constantly goes out of her way to ensure I am left out of what is going on in the office.

Particulars are needed in order for the respondent to respond to the alleged behaviour.

“Always” is too vague and exaggerated; what is needed are specific occasions and dates that the alleged behaviour occurred. It is not possible to respond to an allegation of being “unpleasant”; what is needed is detail and description of the behaviour that is “unpleasant”.

“Constantly” is not specific and needs to be defined. Even if specific dates cannot be given it is possible to say on average how frequently the behaviour occurs, for example a daily or weekly basis. Detail and description is also needed regarding in what way the respondent leaves the complainant out.

2. Emotive allegations

The way in which a complainant has been impacted and how they feel about the alleged conduct of the respondent is often included in an allegation.

Here is an example of an emotive allegation:

Jane Brown’s behaviour is making me feel very stressed and it is not acceptable. Her behaviour makes me sick and I cannot face going to work.

This allegation lacks any detail about the alleged behaviour. In order to enable the allegation to be investigated it is necessary to obtain details about Jane Brown’s behaviour. It is necessary to describe what she did, where it occurred and when, how often and to whom.

The focus of an investigation is on gathering evidence in relation to the alleged conduct and not on the way it made the complainant feel. It is not possible to making findings of fact in relation to subjective feelings.

3. Allegations containing subjective conclusions

Complainants will often include their own opinion and conclusion about the behaviour of the respondent.

Here is an example:

Simon Smith’s behaviour towards me shows that he is trying to oust me from this company and the way he is doing this shows that he is a bully and in breach of policy.

The allegation needs to set out what occurred and when and by whom. It is for the investigator to make a finding of fact in relation to the behaviour and then it would be necessary to determine then whether the respondent is in breach of policy. These types of conclusions should be kept out of allegations.

4. Allegations based on rumour

Allegations based on rumour or suspicion are procedurally unfair

Here is an example:

I heard Simon was fired from his previous job because he was a bully and he is being a bully again here.

You cannot put this allegation to a respondent and expect him to respond as there is no specific information here.

5. Old allegations

Complainants will frequently include allegations relating to conduct that goes back years, but it may be difficult to investigate as witnesses may have forgotten events and evidence may not be considered reliable.

It ma be the case that, if a considerable amount of time has passed, you may not be able to conduct a procedurally fair investigation.

Drafting Allegations Masterclass

If you would like to learn more about how to draft sound allegations that will assist in streamlining your allegation process, save time and money when briefing external investigators and provide a sound framework for a procedurally fair investigation, then register now for our upcoming Drafting Allegations Masterclass on September 10 in Melbourne and Sydney.

About Melanie Roberts

Melanie Roberts is an experienced workplace investigator and 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 and private enterprise, 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 Melanie for an obligation-free, confidential discussion on how to manage workplace conflict.

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