Navigating the complexities of workplace investigations can be challenging and stressful for employers. However, as all employers will receive complaints at some point in time, it’s important to know what to do (and not do) when it happens.
1. Understanding the complaint
Before leaping in, it’s important to understand precisely what you’re dealing with. Make sure you know who is involved, what is alleged to have happened, as well as when, where and, if possible, why it occurred. You should also try to understand what the complainant is seeking without making any promises. At this early stage, you should avoid making any commitments about how you propose to resolve the complaint.
2. Whether or not to investigate
Investigations involve a significant investment in management time and can be expensive, so you shouldn’t jump to investigate every complaint you receive. When an issue arises, you should look at whether it is appropriate for an investigation to be undertaken or whether there’s a better option for resolving the complaint, such as using a manager to informally conciliate an interpersonal disagreement between colleagues. There will be some circumstances where you are required to conduct an investigation (i.e. because of the terms of your policies or your regulatory environment), but there is often discretion involved in making such a decision.
3. Pull out your policies and procedures
Dust off those policies and procedures and remind yourself of what your organisation has said about dealing with workplace complaints. Many employers have policies and procedures in place that provide guidance or structure about how a workplace complaint will be dealt with or an investigation conducted. It’s essential that you comply with the terms of your policies and procedures.
4. Appointing an investigator
Some employers (like public sector organisations) may prescribe who must be appointed as an investigator, but most organisations have the discretion to decide who will undertake an investigation. This is a decision that should be made on a case by case basis. While it is often less expensive to arrange an internal investigator, external investigators are often viewed by investigation participants as being more neutral and may have greater expertise in conducting investigations and drafting investigation reports. If a lawyer is involved in the investigation process or is the investigator, it may mean there are grounds to claim legal professional privilege over the investigation report.
5. Keep in contact
Make sure that the lines of communication stay open throughout the investigation. There is often a range of stakeholders involved in the investigation such as complainants, respondents, witnesses, managers of the individuals involved, decision makers etc. It is important to keep all of them informed about the progress of the investigation as it relates to them, particularly if there are any delays that arise. By actively managing stakeholders’ expectations of the investigation, you can go a long way to minimising some of the stress that is often associated with an investigation.
6. Proactively manage workplace stress
Workplace investigations can be incredibly stressful for the people involved as they often become adversarial in nature and can drag on. They may also cause disruption to the broader team or teams involved. You should therefore be conscious of the impact of the investigation on those individuals and find ways to proactively manage any workplace stress caused by it, such as offering employees access to your employee assistance program.
7. Weighing up the evidence
Assessing conflicting evidence provided by investigation participants is a daunting task for many investigators. If there isn’t enough evidence in front of you to make a decision, think about reinterviewing investigation participants or looking at other sources of evidence (such as emails, CCTV footage or file notes). There are often situations where there is a direct conflict of evidence and there are no witnesses–often called a "he said/she said" situation. It is still possible to make findings in these situations by taking into account the credibility of investigation participants or supporting evidence (like a contemporaneous report to a third party). Most importantly, keep in mind that there will be times when you cannot make a finding and, in that circumstance, you should feel comfortable making a finding that the matter is ‘inconclusive’. After all, if you’re called to give evidence in a court or tribunal, you’re the only one who will be on the stand being asked how you arrived at a particular conclusion.
8. Acting on the findings
Don’t sit on your hands! Once an investigation has concluded, an organisation should ensure that it promptly communicates the findings of the investigation to the key stakeholders. Where the investigation findings are likely to result in disciplinary action for an employee, you will need to ensure that the employee is afforded procedural fairness throughout the disciplinary process. Even when an investigation has been inconclusive, there are still steps you should take–generic interventions (such as training on appropriate workplace behaviour) may be appropriate and you will need to ensure that investigation participants are able to keep working well together, as the investigation process can take its toll on interpersonal relationships.
9. Learn from the experience
There will always be something to take away from an investigation–whether you should refresh your policies and procedures, put in place template investigation documents to streamline the process, or update your business practices. Take a moment to reflect on what went well and what could be improved, and then act while it’s still fresh in your mind.
10. Ask for help when you need it
Investigating workplace complaints can be a minefield to navigate. Having seen it (almost) all before, Dentons can coach you through any difficulties that arise or provide you with a sounding board. The important thing is not to feel like you’re in it alone, even if you have been appointed as the investigator or decision maker. The great thing about asking us for help is that our advice is confidential and based on many years of experience conducting workplace investigations.