When assessing an allegation involving employee misconduct such as discrimination, fraud, theft, harassment, or other concerns, a workplace investigation is best done after meticulous planning, and suitable steps taken to ensure impartiality, and a fair procedural approach.
To that end, we have compiled 11 questions to be considered throughout the process.
1. Is a managerial response appropriate?
Not every workplace incident or complaint should warrant a formal workplace investigation. The seriousness and nature of the incident should dictate whether an investigation is warranted. Some incidents may be resolved without making any findings, but rather through management measures such as:
a) A meeting with the supervisor to warn about suspect behavior and counsel the employee on ways to improve.
b) Remedial training to improve skills, knowledge or behavior in certain areas.
c) Initiating a performance management process.
2. What is the breach of discipline?
Before an investigation can start, it will be essential to identify the specific words and actions allegedly carried out by an employee which may have breached a contract term, EBA provision, law, or company policy that applied to their employment.
3. Who is the right investigator?
Selecting the right investigator is crucial for a fair and unbiased investigation. Ideally, an investigator will be able to be impartial, objective, and have the right skills to apply to the investigation.
An external investigator, like a law firm, can resolve possible concerns about confidentiality, impartiality, and possible conflicts of interest.
4. What evidence to gather?
Identifying and collecting relevant evidence is crucial. A decision may need to be made about:
1) Which witnesses to interview.
2) What types of documents, emails, CCTV footage, or other material might be relevant.
3) Whether there is any physical evidence that might be needed to support the investigation.
5. How to conduct interviews?
It will be necessary to provide adequate notice to interviewees and allow those people to arrange to have a support person present if desired. The notice given should emphasise the confidentiality of the investigation and the interview.
Interviews should be held in a private, comfortable setting to encourage open and honest dialogue.
Plan to use open-ended interview questions to gather detailed information while maintaining neutrality and objectivity.
Consider audio recording interviews to focus on listening and interpreting nonverbal cues, rather than taking notes.
6. Is more evidence needed?
Once evidence is collected and initial interviews conducted, it will be necessary to review the evidence objectively, and to identify any patterns or inconsistencies in statements of witnesses.
You may consider performing a second round of interviews of witnesses to clarify their evidence, or to ask additional questions that may have come to light after the analysis has been completed.
7. Is the allegation made out?
The ultimate purpose of an investigation is to decide if an allegation(s) is substantiated or not. Document your findings and provide reasons for your conclusions based on the "balance of probabilities" standard.
The "balance of probabilities" test is a standard used in civil cases to determine whether a fact or event is more likely to have occurred than not. It requires that the decision-maker be satisfied that the event or a fact is more probable than not.
In practical terms, this means that the investigator or decision-maker does not need to be absolutely certain that a thing has happened. Instead, the evidence is evaluated, and a determination made based on which version of events is more convincing or has the greater weight.
Therefore, while an investigator should consider the evidence carefully and fairly, they do not need to personally believe that something happened with absolute certainty.
8. Is an investigation report required?
For the sake of transparency, and to help other decision-makers understand how findings were made, you should consider drafting an investigation report by compiling all relevant materials, including evidence, witness statements or interview transcripts. An investigation report will ordinarily include an analysis of the evidence and state relevant findings.
An executive summary at the start of the report may also help offer a high-level overview of the issues and summary of the investigation findings.
9. What is the proportionate disciplinary response?
After reaching a conclusion about whether an allegation has been substantiated or not, the employer must decide on the appropriate response. Where it has been concluded that some form of misconduct has taken place, disciplinary measures such as training, corrective actions, or even dismissal, may be appropriate.
10. How to communicate outcomes?
Communicate investigation outcomes promptly and sensitively to all relevant parties. Respect confidentiality while providing sufficient information to address concerns and maintain transparency.
11. Is follow up required?
Follow up on actions resulting from the investigation may be needed to monitor compliance and to ensure an effective resolution. Conduct regular check-ins with employees to address any lingering concerns, and to identify any new issues.
To discuss your business requirements and how you can ensure the appropriate safeguards are in place, talk to one of our employment team lawyers today.
The information provided serves as a general guide and does not constitute legal advice. It is based on our research and experience at the time of publication. Please consult our knowledgeable legal team for any specific inquiries or advice relevant to your circumstances.
