Receiving complaints about workplace misbehaviour raises many challenges for employers.  One challenge is managing the 'investigation' and keeping control of the process. 

Some words of comfort upfront.  Employers do not need to have the skills of police or lawyers to conduct an investigation:  Re Bodo Schaale v Hoechst Australia Limited [1993] FCA 125 at [26].  Employers are expected to act in a practical manner:  Gera v Commonwealth Bank of Australia Ltd [2010] FMCA 205 at [36-37].  Nevertheless, investigations remain daunting.

Here are our tips for employers:

Tip 1:  Prompt assessment of the complaint

There is no value in dealing (or not dealing) with complaints on the basis the complaint is informal or formal, or an incident is reported or unreported.  As an employer you receive information about workplace matters and these matters need to be assessed and dealt with in a meaningful way. 

Is it a safety issue?  Is it a misconduct issue?  Is there any substance to the information? What is your risk assessment of the situation?  Ignoring the information may be criticised as sweeping it under the carpet, or mismanagement and negligence.

Tip 2:  Do you need to 'investigate'?

Not all complaints warrant an investigation in the formal sense.  To investigate is simply to inquire into a matter and collect information on which you can make an informed decision.  What is critical is that an employer is able to demonstrate that it dealt with the information, by assessing it and taking action based on that assessment.

The more serious a matter, the greater the ramifications, the more likely a formal investigation will be warranted including by an external third party - but that need not always be the case.  Some matters could be dealt with by discussion, counselling and mediation. 

Tip 3:  What is your framework for the investigation?

Sometimes policies, or even industrial instruments, may require that an investigation is undertaken and prescribe the standards to be met.  These rules must be readily kept in mind, or risk serious consequences:  see our bulletin in February 2015 on Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177.

Any framework of an investigation should include warnings about confidentiality (not discussing the complaint and investigation with others) and the consequences for victimisation.  Consideration should be given to the necessity to exclude a worker from the workplace whilst the investigation is occurring or if other measures can be taken.

Tip 4:  Planning, planning and planning

On receipt of a complaint, an employer should be planning how to respond.  An investigation (after initial pre-assessment) will typically have the following stages:

  • Gathering the facts from the complainant and other witnesses, and other sources;
  • Determining the precise allegations and putting them to the concerned employee;
  • Giving the employee a chance to respond to the allegations;
  • Substantiating and verifying the response and any outstanding matters;  and
  • Forming views as to what occurred.

An employer will also need to consider who will be the investigator to ensure no actual or apprehended bias.  In today's age of social media and technology, an employer will also need to promptly identify any documentary evidence to be preserved.

Tip 5:  It is your investigation

Too often a complainant will believe it is their investigation.  A complainant will seek to say who should be interviewed and make demands for documentation.  Any investigation is undertaken by an employer for the employer to ascertain facts and manage a situation.  It is for the employer to determine how to conduct itsinvestigation.

Tip 6:  The investigation is to only gather facts and context

Avoid labels (like bullying and harassment) in any investigation.  Labels do not assist.  What is the precise conduct alleged?  What was heard, seen or otherwise perceived by the complainant and witnesses?   Context cannot be ignored.  Context may influence the complexion of any conduct or situation.

There is, at an investigative stage, some utility in hearsay information.  It may identify further enquiries to be made.  However, ultimately, an employer should be focussed on credible, reliable and probative information.

Tip 7:  A fair process

At its heart, one critical element of procedural fairness is the opportunity to be heard.  The opportunity to be heard means giving the affected person the substance of the complaint and disclosing all credible, relevant and significant material that they need to address.  The employee must have the opportunity to deal with all matters adverse to them. 

Tip 8:  Testing the information gathered

An investigator should apply an inquiring mind to all material gathered.  Careful consideration needs to be given to the information gathered to form a view if the alleged event occurred.

And remember, there does not have to be a witness to an event for you to make a finding the event occurred.  Reasons for preferring one version of events over another should be clearly explained with rationale reasoning.

Tip 9:  No value adding please - 'just the facts ma'am'

The investigator's role is to gather information.  Decision-making is separate.  Any report should not go beyond the terms of reference (to gather the facts).  An investigator volunteering recommendations about disciplinary action or suggesting action to be taken may cause more problems.  An investigator should simply set out the credible, relevant and significant factual material gathered, and their reasoning for their findings.

Tip 10:  Decision-making and being critical

A decision-maker will need to review any investigation and make their own decision about what occurred and any disciplinary action warranted.  The decision-maker should be critical of the information contained in an investigation report and question the conclusions reached (Leyshan v Wyndham City Council [2013] FWC 7094 at [207]).  And don't forget to give the employee the chance to respond to the proposed disciplinary action, before making that decision.