Workplace investigations: the dos and don’ts

Analysis

Workplace investigations: the dos and don’ts

Workplace investigations can be crucial to the successful resolution of a complaint or the defence of a legal claim against your business. This article discusses the 'dos and don’ts' of conducting investigations.

Workplace investigations can be crucial to the successful resolution of a complaint or the defence of a legal claim against your business.

This article discusses the 'dos and don’ts' of conducting investigations.

Why investigate?

 
In many businesses, the need for investigations will be quite common. The following are the main reasons why investigations become necessary:
  • if you become aware of possible conduct by an employee that may justify disciplinary action or even dismissal if it is found to have occurred, for example a breach of an organisation rule or policy, or illegal conduct
  • if an employee lodges a complaint about the behaviour of another employee, for example concerning sexual harassment, bullying or micro-management
  • under the provisions of the Fair Work Act that commenced on 1 July 2009, if an employee claims that he/she has a 'workplace right' and/or he/she has been subjected to 'adverse action' in connection with that right.
Examples of incidents that must be investigated include allegations of theft or fraud, fighting, harassment, drug-taking, breaches of safety provisions, damage or misuse of company property (eg vehicles, computers), discrimination, contravening workplace rights, etc.
 
An investigation has two purposes:
  • to determine whether alleged incidents actually occurred
  • to identify and take account of any mitigating circumstances of the alleged incidents.
 
The bottom line for management is: only act on the basis of provable facts, not hearsay or suspicions, and be able to justify every action you take.

What an investigation involves


To conduct an effective investigation, you need to understand:
  • your legal obligations
  • the investigator’s role
  • how to collect evidence
  • how to interview witnesses and take statements from them
  • how to record and prepare witness statements
  • how to prepare and structure an investigation report
  • what to do after you have prepared the report.

Legal obligations

 
If you dismiss an employee, or take disciplinary or other adverse action against him/her without investigating an alleged incident first and establishing the relevant facts (ie that it actually occurred), it is possible that the Fair Work Commission or a tribunal or court may find that the dismissal or disciplinary action was harsh, unjust or unreasonable in the circumstances of the case. Remedies may include reinstating the employee and/or payment of compensation or damages.
 
So while an investigation may be costly and time-consuming, it is arguable that the cost of NOT conducting one will be even greater.

The investigator’s role

 
The investigator’s role is simply to establish the facts of the matter, NOT to judge whether anyone is 'guilty' or 'innocent'. The investigator prepares a report, but deciding how to act upon its findings is a separate process that often involves other parties, eg a more senior manager.
 
Conduct any investigation as soon as practicable after it becomes necessary, otherwise you may send the message that you do not regard the alleged incident as serious, and may even be perceived as condoning the behaviour. Also, delays make it harder for witnesses to remember what really happened, which may later undermine your case.
 
Note: if an issue arises, you should approach the employee involved FIRST to discuss the matter with him/her, before you contact any witnesses.
 
If an investigation is likely to take some time, inform the 'accused' or complainant of that, estimate the time required if possible, but emphasise that any delay does not imply that the alleged conduct is condoned.

How to collect evidence

 
The following basic principles will apply to most investigations:
  • The investigation should cover not only whether the alleged act or behaviour actually occurred, but also whether the employee accused or complained about was actually involved, and whether there are any mitigating circumstances.
  • Only approach witnesses or other parties that you are definitely aware can help you. Instruct them to treat the matter as confidential.
  • Make sure the person has personal knowledge of the alleged incident. If he/she doesn’t, ask the person who is likely to have direct knowledge, and approach them. 
  • Avoid 'fishing expeditions' — these may turn out to be defamatory.
  • For similar reasons, do not ask leading questions when interviewing people. Let them do the talking and use your listening skills judiciously.
  • Collect facts. Taking action based only on suspicions is unfair and may backfire.
  • Ask witnesses to describe in their own words what happened, focusing on the facts. Discourage them from offering opinions on who was right/wrong, or whether some event was justified, you only need to know actual events.
  • Record the words actually used by the witness, don’t substitute your own words or interpretations.
  • Make sure the witness tells the whole story, if significant points are left out it can adversely affect your case later. You can use prompting questions such as: 'Can you recall anything else that happened?'
  • Remind a witness that any statements he/she makes must not be false or misleading, and that, depending on how events subsequently unfold, he/she may be required to attest to the truth of his/her statements at a later date.
  • Where available, examine 'hard' evidence such as video surveillance tapes, emails and letters, inventory records, etc. Note: in the case of surveillance, the employee must have known in advance that surveillance would occur and must be informed about the evidence collected.

Dealing with 'unreliable' witnesses

 
Unfortunately, dishonest or evasive witnesses are quite a common problem (for example 'mates' of the employee under investigation who try to protect him/her) or situations where a single employee lodges a complaint about more than one person.
 
In cases where unreliability is blatant, you may decide it is simply not worth seeking a witness statement. However, you should record your decision not to do so, and be able to justify that decision objectively if you need to, without having to resort to opinions or assumptions. Where the person is a direct witness, it is probably better to take a statement but, instead, point out (as noted above) that the statement must not be false or misleading and the witness may be required to attest to its truth later on. You should of course mention that to ALL witnesses you are interviewing, not just those whose credibility you may doubt.
 
A more constructive approach is to look for other witnesses and take statements from them, or look for other more objective evidence and rely on that. If you make a decision adverse to the employee, you will need sufficient evidence of some sort to justify it, otherwise you risk being challenged.
 
In many cases before courts and tribunals, the decision is made on the balance of probabilities, or on the finding that one party’s overall evidence is more credible than the other’s. This is particularly true in cases of sexual or other forms of workplace harassment.

Preparing a report

 
The following steps are important when preparing the investigation report:
  • Present your report of events in correct chronological order. 
  • State what was actually said, ie 'X said that …'. Avoid using words such as 'explained', 'indicated' or 'suggested'. 
  • If a statement reports a conversation that occurred, it should cover: when it occurred, who was present, what each person actually said, and who (if anyone) said nothing. If the witness recalls the exact words said, place them in quotes, otherwise use a phrase such as 'words to the effect of'. 
  • If a statement reports a telephone conversation, it should identify the other speaker, with evidence of how that person was identified. 
  • If a statement is lengthy, divide it into sections covering each topic, using headings. Ensure that any headings are 'neutral'. For example, use 'The conversation between X and Y', not 'The sexual harassment of Y'.
  • It is good practice to have a witness sign each page of a witness statement but, before doing so, you should again explain the purpose of the report and check with the witness that it records accurately what he/she actually said.
  • If whole documents are relevant to a report (such as emails, performance appraisal reports, inventory records, OHS incident reports), they can be attached to the report as annexures.
Note the legal difference between statements and submissions. A statement records the facts, a submission contains facts, but adds opinions and invites the reader to draw a particular conclusion from them; for example, that an employee is guilty or innocent of misconduct. Again, it is not the investigator’s role to decide who is right or wrong, just to establish and present the facts. A worst-case scenario is that if an investigation report becomes regarded as a submission, it may be inadmissible as evidence if the matter goes to a court or tribunal.

Presenting the evidence to the employee

 
For an employee to defend him/herself against allegations, he/she must be given sufficient details of the allegations to do so. He/she is also entitled to seek assistance from an appropriate person (such as a union delegate) and to have a witness present at interviews and meetings. Therefore, depending on what an investigation reveals, you may need to interview the employee a second time to present the extra information and seek his/her response.
 
Protect the confidentiality of witnesses as much as possible; for example, to avoid retribution from the employee.
 
If an investigation finds that the relevant (mis)conduct occurred, inform the employee in another interview and advise him/her what will happen next. This may be either referral of the matter to a higher authority (such as the CEO) or you may have already decided what action to take (such as dismissal or issuing a warning) such as in cases where misconduct has clearly occurred and there are no mitigating circumstances.
 
If the investigation is inconclusive or determines that the allegations were not substantiated, you must still inform the employee, and provide some details of the nature of your investigation and the basis for your decision.
 
Whatever the outcome, be careful not to take sides in this process, just provide the facts.
 
Keep a record of the original allegation or complaint, your investigation findings and the final interview, in case the employee decides to pursue the matter further (eg via a union or legal proceedings).

See also: Is there a duty of care to workers who are under investigation?
 
Post details