Planning a workplace investigation

Brooke Hall
May 15, 2019
Brooke Hall

My colleagues will attest that one of my regular catch cries around the Worklogic office is “the process will save you”.

Whether responding to a workplace complaint by way of mediation, investigation or workplace review, the temptation can be to jump straight in and get the process started. In our experience it’s critical to stop (take a breath) and work out:

  • what that process should look like;
  • what steps are required; and
  • how long it will take (realistically).

Create a project plan

Where you’ve decided an investigation is required, one of my top tips is to create a project plan, especially if you’re new to the investigation game.

It’s great tool to keep the investigator on track and can also assist with managing stakeholders (both at the beginning and during your investigation) so that they can understand (and approve) the steps in the process and the timeline for completion.

As with any plan, it’s almost guaranteed that it will change as the investigation evolves. The presence of a plan, however, forces the investigator to think about the reasons why, or why not, they might take a particular step and the impact of that decision on the fairness and adequacy of the investigation.

The plan will be different for each investigation, depending on a number of factors, including the seriousness of the matter you will be investigating. That said, there are some key milestones common to every investigation process.

Confirm the scope and purpose of your investigation

In our experience, this is the part of the process that seems like it should be quick and straightforward, but rarely is. Time invested in the following steps, however, is never wasted:

  • Identify who should conduct the investigation. This might be you or an external investigator. Consider whether it would be appropriate to outsource the investigation where, for example, the allegations concern serious misconduct or involve a senior member of your workforce;
  • Interview the Complainant to collect their evidence and to clarify what the allegations are. The conduct alleged should be clearly set out to ensure that the Respondent can understand, and sensibly respond to, the allegations put to them. Poorly drafted allegations can result in a procedurally unfair investigation which is a waste of time and resources. To learn more about drafting allegations, you can register here for our free Drafting Allegations Webinar on tomorrow at lunchtime.
  • Consider whether you need to interview some witnesses during this phase of the investigation and/or whether you need to collect or conserve other physical evidence (emails, social media posts etc);
  • Confirm which allegations you will (and won’t) investigate; and
  • Inform the Respondent(s) about the allegations and the repercussions that might arise to them should the allegations be proven.

At this stage of the process, it’s also worth allocating some time to consider the purpose of the investigation.

If your investigation report will be used for multiple purposes (for example, misconduct and reportable conduct) you’ll need to familiarise yourself with relevant policies and legislative requirements. They might need to be referred to in the allegations and your communication with the respondent and will dictate the evidence you need to collect.

Gather evidence

During this phase of the investigation, the investigator will seek the respondent’s reply to the allegations. Consider how you will do this – written response and then interview, or interview only?

Depending on the respondent’s evidence, you might also need to get evidence from relevant witnesses. Your plan should set out the order and timing of these interviews, ensuring that you give the respondent;

  • adequate time to consider the allegations before responding to them; and
  • the opportunity to consider and comment on all of the evidence that is collected that is contradictory to their version.

We often find that it is necessary to include some administration time during this phase of the investigation. Plan to spend some time co-ordinating calendars with the respondent and their support person and liaising with witnesses to explain their role in the investigation.

The investigator will also need to prepare for these interviews, thinking about the types of questions they will need to ask about in order to determine whether the allegation is proven.

Depending on the purpose of the investigation, they will also need to consider what evidence they will need to help them decide about whether any proven conduct also represents a breach of policy or legislation.

Consider evidence and make findings

We’re nearing completion now! The third phase of the investigation will be where the investigator considers all of the evidence gathered and prepares their report. Estimating how long this takes will depend of the complexity of the investigation and is akin to estimating the length of a piece of string!

In any circumstances, the report should set out the scope of the investigation, the steps taken, the evidence gathered and an analysis of that evidence and findings in relation to each allegation.

It’s often difficult to balance the need to conduct an efficient and timely investigation (and keep stakeholders and participants informed), whilst ensuring that it is also conducted in a procedurally fair manner. When in doubt, allowing an extra day or two to provide procedural fairness, will be worth it to ensure that the investigator’s findings are reliable.

In short, a well-planned process should save you time, money and pain!

About Brooke Hall

Brooke Hall

Brooke Hall has significant experience in the workplace relations area, having previously worked as a lawyer for 10 years at the now Fair Work Ombudsman. Brooke brings strong communication, investigative and analytical skills in the area of dispute resolution to Worklogic. Her strong client service focus and pragmatic approach ensures clients receive practical solutions to a range of workplace issues.

Worklogic has extensive experience in triaging and resolving workplace complaints.  If you would like advice on a workplace complaint, you can contact Brooke for an obligation-free discussion via email or by calling (03) 9981 6500.

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