Investigations can often lead to disciplinary proceedings or termination and, in turn, claims for unfair dismissal. It is important to ensure that they are conducted properly and with regard to all relevant legal standards. Many employers have complaints and workplace investigations policies which give employees certain rights.
WORKPLACE INVESTIGATIONS POLICIES
Employers should have complaints and investigations policies which give employees certain rights. These include rights for the employees to:
- receive particulars of the complaint made against them in writing before they are asked to discuss it with the employer;
- receive a sufficiently detailed summary of all the adverse information that may be relied on when determining whether or not the employee engaged in misconduct;
- have a reasonable time to respond in writing to the complaint and the summary of the adverse information;
- have responses to the complaints made against them be considered before a final decision is made;
- bring a support person to any meetings during the investigation;
- have the investigation conducted by a person who is not connected with the complaint and is not actually or apparently biased; and
- have the final decision about whether they engaged in misconduct made by a person who is not connected with the complaint and is not actually or apparently biased.
CONDUCTING WORKPLACE INVESTIGATIONS
1. Choosing the investigator
The basic principle here is that the decision-maker cannot undertake the investigation. 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 senior manager.
One of the most important choices that an organisation can make in relation to their investigator is whether to choose an internal person, such as a manager from another department, or an external third party. External parties may be less likely to act with bias, however they will be less experienced with the organisation and its policies. Internal persons may not require a fee, although moving them from their usual duties may come at an economic cost to the organisation.
2. Procedural fairness
A good investigator must act with procedural fairness. This can be important in any future litigation that arises out of a workplace investigation, particularly if employees involved are terminated as a result of findings. Procedural fairness involves:
- Informing the alleged perpetrator of the case against him or her, and advise the alleged perpetrator of the potential consequences of the allegation.
- Giving the alleged perpetrator the opportunity to tell his or her side of the story, and genuinely take this into consideration as evidence in the investigation.
- Conducting the investigation in a timely manner without unnecessary intrusiveness.
- Hearing all of the evidence from all parties who have information on the incident.
In the case of such offences as property damage, site inspections and photographic evidence may be necessary.
Procedural fairness extends into the final decision making process, for example, taking into account all of the evidence prior to reaching a decision about disciplinary action or even termination.
3. The report and follow up
A workplace investigation must conclude with a report. The report should be comprehensive, and deal with all of the matters that were within the terms of reference even if there was little or no evidence to substantiate them. It should also outline any relevant legislation or internal policies or procedures that will be applied to the evidence in order to ascertain whether there was a disciplinary breach.
Disciplinary processes: it is important to recognise that disciplinary processes are different from workplace investigations. They must be kept separate. However, disciplinary processes may need to be implemented by the decision maker in accordance with the recommendations of the investigation.
The review: A workplace investigation should always conclude with a review. Each investigation is an opportunity to test out the organisation’s policies and procedures. It is worth noting what worked well and what did not, along with any problems or roadblocks encountered along the way. This will help to ensure that the next investigation is smoother and more efficient than the previous one.
John Morrissey has been a practising Sydney solicitor for 30 years, and for the past 20 a sole practitioner and the principal at JFMLAW.
His main focus employment law, advising small to medium-sized firms and their employees of their rights and obligations.
For many years he was a lecturer at UTS to students obtaining Masters in Human Resources Management with a focus on performance management and creating a culture of delivery in workplaces. John has acted for a significant number of employers, not only in developing a performance based culture in the workplace but also solving particular problems that arise relating to unfair dismissal, contract disputes, improper use of intellectual property or other property as well as enforcements of restraints of trade.
John is very happy to speak to any employer who has an issue on a free of charge basis by a phone call. Please feel free to ring John at anytime up to 6pm most days.