Responding to workplace complaints and misconduct

Are you trying to deal with an employee who has been accused of serious misconduct?

Quite often we try and brush-off the complaint as something minor, rather than dealing with it front-on. We hope it will just sort itself out, rather than requiring us to have a number of very difficult conversations, and perhaps even have to deal with a forced termination.

But as an employer, difficult conversations are something we just can’t avoid. In fact, avoiding it can end you up in very hot water. What starts out as an employee’s misconduct can soon result in you being slapped with a claim by the victim for not taking it seriously enough.

The minute you hear of a complaint, or see conduct that does not look right, you need to swing into action.

The first point of call is to assess whether the employee’s conduct contravenes a law, regulation or even one of your workplace policies (yes, you have those, don’t you!) Chances are it won’t be obvious what has gone on, and will therefore require a workplace investigation. If you do not feel experienced enough to do this, or you feel that you may be compromised or conflicted, then we are here to help.

Call us on 1300 88 23 86 for a no-obligation and confidential chat.

What should you be looking out for?

Examples of serious misconduct can include:

• Obviously illegal behavior
• Behavior that creates a serious risk to the health and safety of the employee, their colleagues or clients
• Bullying or harassment of colleagues and clients
• Out-of-hours conduct which poses a serious risk to the reputation of the business
• Breaches of confidential information or IP provisions of an employment contract

Workplace investigations are not about work performance

It is important to understand the distinction between serious misconduct and an observation that your employee is just not performing their job up to standard. Workplace investigations are not appropriate to deal with performance issues. If you are concerned about an employee’s productivity, work quality or work ethic, as distinct from their behaviour or conduct, you should start a performance management process.

When should you act?

Even if you suspect an issue of misconduct, or someone has raised an issue with you in an informal way, it is still very important that you act quickly to establish an appropriate impartial investigation process.

Unfortunately, investigations and allegations of misconduct can be disruptive. As independent advisers, we can help you minimise this disruption. A failure to act quickly will, at best, be seen by your team as a failure on your part to take misconduct or complaints seriously. In the worst case, it will expose you to serious liability.

If the complaint is about a less serious matter, then you still need to investigate to the point that you can confirm it can be appropriately dealt with by a warning or formal counselling of the employee.

What do we do as an ‘independent investigator’?

There are many good reasons to engage with us to carry out your workplace investigation. The most obvious is when you have a conflict of interest, or you (or one of your senior team members) is involved in the alleged conduct. But there are other good reasons to get external help, including avoiding the distraction of carrying out the process, or because you do not have someone on staff who is experienced enough in employment law and investigations to undertake the process correctly.

We can attend your business and run the process from beginning to end. Alternatively, we can remain at the end of the phone and provide coaching to your internal resources.

Key tasks include

• Obtaining relevant statements from all persons involved in the incident or behaviour
• Assessing relevant laws, regulations and policies that impact the behaviour
• Considering whether any issues of mandatory reporting are involved
• Considering whether any external authority needs to become involved
• Preparing a report and/or independent recommendations
• Assisting you to implement our recommendations, which could involve warnings or more serious sanctions
• Assisting you to put in place further policies and procedures to help avoid the conduct reoccurring in the future

Having these tasks performed by an independent party, who is qualified in the relevant area, will avoid any perception of bias.

Our report will also provide a robust justification for any terminations that need to occur as a result of the behaviour. As experienced employment law specialists and investigators, we can ensure best practices are followed.

Next steps

Call us on 1300 88 23 86 for a no-obligation and confidential chat. We can help you avoid the distraction and heart-ache associated with undertaking an effective workplace investigation.