Australia: Mastering workplace investigations – whether, who and how

Last Updated: 7 November 2018
Article by Michelle Dawson

Among the most risk-fraught of workplace challenges that HR teams face is conducting workplace investigations. Workplace Relations Partner Michelle Dawson explains what you need to know.

These days, perhaps more than ever, there is significant impetus for employers to ensure legal compliance and to manage risk when it comes to workplace issues. There is little doubt that employers rely significantly on their HR teams to be fully up-to-date with the ins and outs of all things "workplace". Among the most risk-fraught of workplace challenges that HR teams face is conducting workplace investigations.

What you need to know:

  • Workplace investigations can be compromised even if just a single step is not taken, or point not properly analysed.
  • Some complaints or situations require a workplace investigation and some do not.
  • An internal investigator may or may not suffice and an external investigator may need to be appointed.
  • How an investigation should be conducted will be determined by a number of factors and legal considerations.
  • Help is at hand: our upcoming comprehensive Masterclass entitled: "Investigating Workplace Complaints", will equip you or your HR team with the relevant tools and materials to be able to confidently and competently investigate workplace complaints. This could be the Masterclass for you!

Background: When a workplace investigation goes wrong

Unfortunately, it is not uncommon to see workplace investigations go wrong due to simple mistakes or lack of knowledge as the following case demonstrates. One such case involved a missing laptop computer which had allegedly been stolen by a delivery driver. Relying on CCTV footage, which was not shown to the employee during its investigation, a Queensland employer dismissed the delivery driver for the theft of a laptop computer. As it turned out, the CCTV footage did not prove that the employee stole the laptop computer and this (coupled with the fact that the employer had relied upon the footage without showing it to the employee and permitting his response) meant that the employer had unfairly dismissed the employee and was required to pay him some $25,000 in compensation.

It is these types of flaws in workplace investigations which leave employers exposed. When it comes to workplace investigations, do you know enough to avoid liability?

Some insights

The questions that we are most often asked by our clients in relation to workplace investigations include:

  • Whether a particular instance justifies or necessitates an investigation;
  • Who should investigate; and
  • How to conduct the investigation so as to best minimise an employer's risk.

Whether to conduct a workplace investigation

There are many reasons to conduct a workplace investigation. Most commonly, the need arises because a complaint or allegation has been made about an employee's conduct and/or because a contract, a policy or a law (whether it be safety, discrimination, harassment or bullying) imposes a legal obligation upon an employer to do so.

Not every complaint or allegation requires investigation, though. Many concerns raised by a complainant can be resolved on an informal basis by managers or supervisors through other processes such as mediation or even through the implementation of changes in internal practices or processes.

Generally, unless the complaint is one which fits into any of these categories, it may not be necessary to undertake a workplace investigation:

  • a workplace policy stipulates the requirement for an investigation;
  • the allegations are serious and/or termination of employment for serious misconduct is a possibility;
  • allegations or complaints of bullying, discrimination or sexual harassment have been made; and/or
  • a breach of workplace health and safety laws has occurred or is reasonably suspected.

Who should conduct a workplace investigation

If it is determined that an investigation is necessary or otherwise appropriate, it is then necessary to decide who should investigate. The decision as to whether an internal or external investigator is appointed is often an important one – and once that is decided, choosing the right investigator is equally as important.

An appropriate investigator should meet, in the least, all of the following criteria:

  • they should not have any interest in the outcome of the investigation;
  • they must not be a potential witness;
  • they must be free of any actual or perceived bias;
  • they must be analytical and have high attention to detail; and
  • they must be in a position to maintain confidentiality.

How to conduct a workplace investigation

How a workplace investigation should be undertaken will depend on a series of things, including the nature of the complaint or allegations, whether the investigation is compelled by some legal requirement and if so, what the nature and source of that requirement is.

Investigating Workplace Complaints – The Masterclass

We understand that workplace investigations can be complex and therefore regularly run a pragmatic, interactive and comprehensive 'Investigating Workplace Complaints' masterclass.

Aimed at HR manager level, the Masterclass is an interactive session which is both educative and practical in that it incorporates a series of relevant activities and materials which participants can subsequently utilise in the conduct of workplace investigations within their roles.

The Masterclasses will be conducted by Madgwicks Partner, Michelle Dawson (an LIV Accredited Workplace Relations Specialist) on 29 November 2018 from 1.00pm-4.30pm at Madgwicks' office. The 3.5-hour workshops will take place in small groups and will cover:

  • Why a workplace investigation?
  • Identifying whether an alternative approach to investigation is appropriate
  • Determining who should investigate, including making the decision between using an internal or an external investigator
  • The pros and cons of legal professional privilege in the context of workplace investigations
  • Planning the investigation
  • Ensuring procedural fairness
  • Confidentiality
  • Formulating allegations
  • Preparing Terms of Reference
  • Interviewing techniques
  • Burdens of proof
  • Preparing an investigation report
  • Making findings
  • Making recommendations
  • Communicating outcomes

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Madgwicks is a member of Meritas, one of the world's largest law firm alliances.

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