As this is my first blog for the year, I wanted to say welcome to 2021 and I hope this year is a little safer and smoother for you than perhaps last year was.
As we move into the working year and get back to the ‘new’ business as usual (definitely a subject of another blog) there is always the possibility you will need to manage a workplace complaint by way of an investigation.
We have previously written about the need to maintain procedural fairness when conducting workplace investigations. The Fair Work Commission (FWC) frequently refers to it when deciding on unfair dismissal cases and their findings serve as a great reminder about what not to do during an investigation.
For example, in a recent decision by the FWC (Harris v Luka Financial Pty Ltd) an employee, Mr Harris, was dismissed for allegedly engaging in secondary employment which was assessed by his employer, Luka Financial Pty Ltd, to be in direct conflict with their business interests. The FWC found Mr Harris was denied procedural fairness when they conducted a disciplinary meeting with him without describing what the concerns about his behaviour under investigation were; in effect they denied him an opportunity to properly prepare his response to the ‘allegations’. In this case Mr Harris’ dismissal was found to be valid despite the procedural deficiency of the employer’s approach; however, this is not always the case and a failure to properly conduct a procedurally fair investigation can lead to the reversal of a dismissal and in some cases a financial remedy.
To ensure you maintain a robust workplace investigation process, here are a few of the ‘golden rules:
Apply Natural Justice
Natural justice, or procedural fairness, is the backbone to any investigation. The following steps will assist you to maintain procedural fairness; however, your process must also be unbiased (the bias rule of natural justice) and provide the opportunity for the respondent to provide a response to the allegation (the hearing rule). Both rules form the foundations of natural justice.
Maintain Confidentiality
Often argued as difficult to maintain (‘everyone in the office gossips’) but the confidentiality of an investigation needs to be maximised. This can be assured by only informing those employees who need to know an investigation is being conducted, being private and discreet when interviewing parties to an investigation, and requiring participants to only discuss their involvement with a support person or HR.
Allegations Are Clear and Precise
There are differences between a complaint and an allegation. A complaint tends to contain broad, non-specific information, emotion, and opinion. In contrast, an allegation needs to be specific and descriptive and contain only matters which a finding of fact can be made about. Allegations should describe when and where something occurred, what occurred, by whom and how. If your allegation does not contain that level of detail, there is a risk it is vague and, in that regard, procedurally unfair.
The Investigator has the Right Skills
In order to conduct a fair, transparent, and successful investigation, the person conducting it needs to be capable of:
- Planning the investigation
- Conducting appropriately structured interviews
- Recognising relevant versus irrelevant evidence
- Comfortable with communicating the process, dealing with difficult situations and people
- Conducting the investigation in a timely fashion
- Articulating clearly in their report how they assessed the evidence and their findings
If the investigator is not competent, there is a risk any outcome could be deemed procedurally unfair and open to challenge.
Make Findings on the Relevant Evidence
Following on from the above, the investigator must be able to recognise what constitutes relevant evidence versus irrelevant evidence. For example, evidence of someone’s character is irrelevant during a fact-finding investigation though similar type behaviour or a tendency to behave in a certain way may be if it is sufficiently similar to the matters currently under investigation and can be assessed as relevant.
It is important to review all of the evidence collected and have an open mind to what the evidence is telling you. Take away any preconceived ideas, ‘gut feels’ or biases when assessing the evidence you collected, and make sure you have been thorough and open to all avenues of inquiry. This will ensure you have collected sufficiently reliable and relevant evidence to make a finding with.
Finally, make your findings on the balance of probabilities. This means assessing whether the evidence you have collected supports a finding that the respondent more likely than not engaged in the behaviour alleged.
Final Word
These five tips are just some of the golden rules. There are others relating to the use of contradictory evidence, communicating the process, and so on and each one is as important as the other. If you are responsible for conducting investigations for your organisation, don’t panic! Take the time to review your policies and processes and if you have a question, do not be afraid to ask.
If it helps, feel free to review the plethora of a resource we have on our website, or give me a call. I will talk the legs of a chair about investigations any day of the week.
All the best for 2021.
About Jason Clark
Jason Clark is a Worklogic Director. Jason has extensive experience as a workplace investigator, investigating a range of issues including fraud, bullying, harassment and sexual misconduct. He has also assisted numerous organisations develop strategies to minimise poor behaviour and encourage a positive workplace culture.
Upcoming training from Worklogic:
Drafting Allegations Masterclass – Online
- Date: March 2, 2021 9:30 am – 1:00 pm
- Duration: 3 hours and 30 minutes
- Venue: Online
- Categories: Courses
- Presenter: Jodie Fox
- Price: $399.00
Clear and precise allegations form the foundation for an effective and procedurally fair workplace investigation. Allegation flaws are very common and surprisingly hard to fix once an investigation is underway.
Presented by Worklogic Director, Jodie Fox, this half- day intensive course will coach you through:
- What a procedurally fair allegation looks like;
- What should and should never be included in allegations;
- How to interview a complainant when drafting allegations;
- Drafting Allegations with reporting in mind;
- Tips and Traps when drafting allegations.
About Jodie Fox
Jodie Fox is passionate about helping people and organisations manage workplace conflict in a productive way. An experienced employment lawyer, she specialises in workplace investigations, workplace reviews and mediations to address and resolve complaints and foster a positive workplace culture.
