Received a serious staff complaint? Time to conduct a workplace investigation

It is a reality that complaints of bullying, sexual harassment and allegations of poor health and safety frequently arise in workplaces. At the root of these issues can be poor staff behaviour, a workplace culture problem, or operating standards that are non-compliant.

If your business receives a complaint from a staff member, or if an alleged health and safety incident has occurred, the best response in most cases is to thoroughly investigate the incident. Conducting a workplace investigation allows you to:

find the truth of the allegations in the complaint, or the facts and circumstances of the incident
make decisions about how to deal with the complaint or incident based on your findings.

Where safety risk or legal liability exists, a well-conducted workplace investigation is critical to reducing your legal exposure, and avoiding litigation expenses, reputational damage as well as distraction away from managing your business.

What to consider before investigating

Before commencing an investigation, you should consider these questions:

is an investigation needed? If the issue or incident is low risk, the facts are already known, or the potential consequences are minimal, an investigation is unlikely to be warranted
will the investigation be conducted by an internal person or independent third party? The answer will depend on several factors, including:
- whether internal managers have the skill and experience to gather and assess the evidence (which is often complex and deeply personal)
- whether anyone internally is independent enough to make unbiased decisions
- whether you want the content and findings of the investigation covered by legal professional privilege so it can be kept confidential. If so, you should seek professional legal advice.
what is the investigator being asked to do? Sometimes it is just to find the facts, but other times it is to form a view on whether the allegations are substantiated and if that constitutes a breach of law or company policy. You might want the investigator to opine about why the issue or incident happened and make recommendations about how to prevent it in future
who decides on any disciplinary action for employees? The investigator and decision-maker should not be the same person.

Conducting the investigation

It is best practice for workplace investigations to be conducted quickly, confidentially, sensitively and with procedural fairness to all parties. Workplace investigations should not be biased or favour one person, and should give consideration and appropriate weight to the information gathered. It’s about giving any person under investigation a reasonable opportunity to respond to allegations against them.

Employers conducting workplace investigations should ensure they are comprehensively and fairly run, with all evidence weighed up and considered with recommendations in a final report to management.

Poorly conducted workplace investigations come with a significant risk of compromising the outcome, which increases legal exposure and reduces employees’ trust and confidence in the employer. The consequences are potential legal claims and workplace culture issues. However, with a proper investigation process, employers can protect their business and ensure misconduct allegations are dealt with effectively.

If you need assistance conducting a workplace investigation, or are seeking an external party to manage an investigation, please contact us here.

This article was originally published in the Australian Hospitality Directory.

Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.