How Do I Fairly Conduct a Workplace Investigation?

The last thing you want to do if an employee accuses another employee of behaviour that has a negative impact on your employees or your business, is to run around trying to figure out how to fairly investigate the situation. Not knowing in advance how you will respond leaves you open to responding in an inappropriate way and leaving your business open to litigation. Putting processes in place for how you will conduct workplace investigations is an essential part of the human resources side of your business. Businesses have a legal obligation to conduct fair workplace investigations into incidents and complaints. Failing to have processes in place is a sure way to fail your legal obligations when investigating a situation.


Processes and written procedures not only help to ensure that the investigation is conducted fairly but will give you clear steps to follow so that you meet your legal and moral obligations to your employees. There are many considerations that should be in place prior to starting a workplace investigation, but if you don’t have those in place to start with, you may not be able to conduct the investigation in a timely manner, which is an essential part of the process.


Legal Considerations

You have several legal considerations when conducting a workplace investigation. These include ensuring employee confidentiality is maintained (both for the accuser and the accused), ensuring that the investigation is conducted in ways that are fair to both parties and that the investigation is conducted in a timely manner by a qualified or trained person. If you do not have a trained person in your organization, you may need to hire an impartial, trained external person to conduct the workplace investigation. Failure to investigate complaints properly can also result in litigation against your business.


Documentation – Why having the right documentation is important!

A workplace investigation needs to have clear and fair documentation processes, so that an impartial judge will consider that the investigation was conducted fairly if required. The documents that are required to complete the investigation may include interview transcripts with the parties involved, documentation on the timing of events and any other steps the employer undertook to conduct the investigation, such as reviewing CCTV footage. Good HR procedures and processes will include a checklist of documentation for a workplace investigation, as well as the processes to be followed in securely storing that documentation to maintain the privacy of the parties involved.


Documentation processes allow your business to prove that the investigation was conducted properly, that proper procedures were followed and that your organization investigated or complied with an external investigation as required by law.


Employee Considerations

You will need to maintain a safe and secure working environment for all employees while the investigation is ongoing. You may have to make some changes, particularly if an employee accuses someone of bullying or sexual harassment. You cannot leave the accuser in a position where such incidents may occur again during the time of the investigation. You also must prevent bullying or coercion by other employees or managers to make an employee or witness change their story.


However, you also have a legal consideration to ensure that employees are not disadvantaged until you are sure that disciplinary action is indeed warranted. Falsely accusing or even disciplining an employee who is the subject of the complaint, without first collecting all the facts and without undertaking the investigation can lead to litigation too. Good procedures will explain how to ensure the safety and confidentiality of all people involved in the complaint. The procedures should also outline who has a ‘need to know’ the investigation is occurring and how to ensure confidentiality is maintained throughout the business while the investigation is happening. Preventing gossip about the investigation by other employees is also important.


Common Mistakes When Conducting a Workplace Investigation

There are several common mistakes which you will want to avoid if you need to conduct a workplace investigation. These include failing to investigate a complaint of misconduct, delaying the investigation which could cause greater harm to complainant and failing to consider all of the evidence including interviewing key witnesses, reviewing emails, texts, surveillance or security recordings, or computer records. Treating similar problems or complaints in different ways or acting inconsistently is also an unfair way of conducting a workplace investigation.


Another big and common mistake is to use coercive interview tactics such as preventing an employee from having a support person present or leading an employee to think they could lose their job by not cooperating with the investigation.


Investigating complaints and incidents in the workplace can be very challenging, especially for small to medium business owners. Often dealing with a complaint internally can feel awkward, particularly given the relationships that exist within the workplace. This is where an external HR management team, such as Dreamstone HR can provide great relief.


How DreamStoneHR can assist!

With over 45 years of combined industry experience, our team have the skills, knowledge, and experience to quickly and efficiently deal with workplace complaints and conduct timely investigations that lead to results.


Not only can our dedicated and professional team assist and support you through an investigation, but we will also have the capacity to provide ongoing assistance and HR reviews, to ensure that your workplace policies and procedures don’t allow for this to occur again. Afterall, no business wants to repeatedly deal with regular investigations.


If you are looking for some support during a workplace complaint or investigation, give the Dreamstone HR team a call today on (02) 8320 9320 or info@dreamstonehr.com.au.

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