May 01

How to ensure your misconduct allegations are fit-for-purpose

Unless you have been living under a rock over the past decade, you will be familiar with home renovation makeover programmes, and their familiar catch-cry: “never squib on your materials!”. The same approach applies (in the slightly less glamorous land of workplace investigations) when it comes to defining and confirming the allegations which you investigate.

The foundation and corner stone of any investigation are the allegations, so make sure that your allegations are clear, elegant, precise and objective. That way you will be on the right track to conducting an investigation, and in turn making findings, which in turn are reliable and logical.

If you want to make sure your investigation shines, you can’t afford to take a “near enough is good enough” approach. To help you, we’ve set out some tips below for ensuring that the allegations you investigate are truly fit for purpose.

Develop a clear and precise statement of allegations

How often have you received, as part of your role, a letter of complaint which includes, maybe, something along these lines?

“Donald was angry again during the team meeting with me, and did not allow me to speak when many others were allowed to. He also whispered to someone at a recent industry conference, “crooked Emmanuel”. On other occasions he did allow me to speak, but at that time, no-one else was present, except Teresa and Angela. Angela tried to intervene, and then Donald intimated that I was not a team player by emailing everyone about customer feedback which he said I had ignored. Please investigate this ASAP! This is my complaint, Merci, signed Emmanuel”.

Clearly Emmanuel wishes you to investigate, and quickly, but, the question is, “Investigate what?”.

There is no clear statement of allegations. So do not even start investigating Donald’s response to Emmanuel’s complaint by sending this letter of complaint to Donald – no matter how much pressure may be on you.

This complaint needs a lot more clarifying and exploring first with Emmanuel.

Certainly, Emmanuel has stated, “this is my complaint”. He certainly wishes it to be investigated, but as the investigator, you have the right and the requirement to act fairly to all. Donald needs to know specifics.

For example, what does Emmanuel mean by “Donald was angry?” Let’s be clear that anger can manifest in a myriad of ways: verbally, physically, behaviourally, aggressively, or sometimes more subtly. We need to drill down: what did Donald allegedly say and/or do that led to Emmanuel describing him as angry. Which team meetings? When? Over what time frame?

And what does the enigmatic phrase, “on other occasions”, refer to? And what was Donald allegedly doing and/or saying which led Emmanuel to state that he was intimating that Emmanuel was not a team-player? Which email, and to whom was that email sent? And what was Angela allegedly attempting to do to intervene?

No one is a mind reader. In the investigations space, you must live by the mottos: “Never assume” and “Be prepared”.

Whilst Emmanuel may say, “well, Donald will knows all about this, please ask him”, you as the investigator clearly do not know, and it is not fair or appropriate to assume that Donald may know.

So make sure you clarify the vagueness, identify the frequency and specificity of alleged actions and events. Use a “who, what, when, how often” line of inquiry in order to interrogate each vague aspect of the allegation as it currently stands.

Re-state the allegation with the details included, and once Emmanuel confirms that that is the complaint in its entirety with necessary details included, send it to Donald.

Do not include evidence in the allegations

Make sure that you are clear about what you do, and do not include evidence in the allegations. There is a difference between the allegation itself, “On 25 October, Crispin emailed George that his annual Performance was unsatisfactory, without explanation”, and then including the email trail, all the information provided by George about his performance over the past year and George’s job description.

Evidence in support of an allegation is not a necessary part of any allegation. Such evidence may of course become possibly relevant to examine, depending on the response from Crispin, and the scope of the allegation too. So do not include evidence in any allegation.

Evidence and allegations should be kept separately. If one might channel architectural design, keep yourself and your allegations elegant: the principle of Georgian clean lines should apply, rather than expansive and unnecessary Victorian clutter!

Focus on the nature of the behaviour – not how if affected the respondent

A complainant will often explain how the behaviour of the respondent has subjectively affected them. This is not something that can be objectively investigated and findings of fact made on. So, don’t include this in the allegation.

Similarly, consequences of alleged behaviour, such as “I felt undermined”, or “I felt threatened”, are much better given a backflip, and re-stated:

  • “X did this to me in an undermining way, by not speaking to me until 3 days on 27 May 2019 after he had first raised the budget concerns with three external stakeholders, A, B and C at an offsite meeting on 24 May without my participation or knowledge”
  • “X did this to me in a threatening way”, by standing over me whilst I was at my desk, about 30 cm from my head, and shouting loudly I was a “waste of space“.

Framing allegations this way means you can focus on the nature of the alleged behaviour, rather than how it emotionally and subjectively may have affected the complainant.

If the scope of the investigation includes a comment on apparent breach of a code, conduct or policy, then that is the place and space to explore the possible consequences of any proven allegations.

Commencing your investigation journey in this way with clear, elegant, precise and objective will ensure that you are setting up your investigation to be a fair, reliable and analytical process for all.

Hone your skills in drafting allegations

Translating an employee complaint into a clear and precise statement of allegations is essential for an effective and procedurally fair workplace investigation – and is an important skill for HR and senior managers responsible for addressing allegations of misconduct. Worklogic’s Jodie Fox is running two events to help you hone your ability to draft sound allegations.

In our free May 16 webinar you can learn about “Common Flaws in Drafting Allegations”, drawing on Worklogic’s extensive experience investigating allegations of misconduct over more than a decade. Register now.

If you want to develop your skills in drafting clear, elegant, precise and objective allegations, attend our “Drafting Allegations Masterclass” on May 28 in Melbourne, where participants will be coached through several complaint scenarios based on de-identified real cases and  become proficient at drafting allegations to set up investigations designed to provide clear and robust findings of fact. Register now.

About Grevis Beard

Grevis Beard is the co-founder and director of Worklogic. Grevis has significant knowledge of the dynamics of workplace disputes and their resolution. Grevis works with a range of clients to improve workplace communication, investigate inappropriate behaviour at work, manage workplace risks and handle complaints. He is an acclaimed speaker and author.

Worklogic works with employers to resolve workplace  complaints and create a positive culture at work. Please contact us for an obligation-free, confidential discussion on issues at your workplace.