Steps in Workplace Investigations
Workplace investigations vary greatly. However, it is possible to identify the general stages or steps undertaken during a typical workplace investigation. While several identifiable steps in workplace investigations may occur, the complexity and effort required for an inquiry will differ from case to case.
A workplace investigation must balance several considerations. There must be procedural fairness afforded to both complainants and respondents. The potential (unfair) damage to reputations and careers from allegations in the workplace can be significant. Whether disputed or not, allegations can cause distress and panic in the workplace. It is why employers ought to clearly understand their rights and responsibilities to get to the truth of an allegation and make decisions accordingly.
The failure to properly investigate grievances carries its own risks, as is so for unfair workplace investigations. Businesses and business operators may face legal action for the harm or damage caused through inadequate or unfair workplace investigations.
While there are many possible formulations of the steps for a procedurally fair workplace investigation, how workplace investigations are conducted may be set out in six steps:
- Deciding if an investigation is needed
- Planning the investigation
- Gathering evidence
- Allowing an opportunity to respond
- Considering the evidence
- Delivering findings and recommendations
1. Deciding if an investigation is needed
A business or organisation faced with a grievance or complaint must determine an adequate response in the circumstances. If the workplace has a grievance handling policy, that is likely to provide the starting point for deciding if an investigation is needed. A workplace investigation aims to determine the truthfulness or accuracy of the allegation or workplace concern (such as when an employer suspects misconduct or serious misconduct by an employee).
A grievance or complaint may relate to a conduct or capacity issue. A workplace investigation may be necessary if it is a conduct issue. On the other hand, if it relates to capacity, it may be due to a lack of training or a temporary health issue, in which case a disciplinary process may be the wrong response to the issue. However, in cases where underperformance is ongoing, it may become a capacity issue that requires disciplinary action.
While in many cases it may be clear what the issue is and why it may breach a workplace policy or pose a threat to health or safety, in other cases, it may not be so clear. Without the grievance or complaint being defined, it may be challenging to investigate and allow an opportunity for the employee who is the subject of it to respond. This can cause unfairness. A complaint or grievance may require some initial follow-up questions or clarification.
In general, a complaint or grievance should outline the relevant times, places, and circumstances of the allegations and at least raise a conduct or capacity issue (i.e., a breach of code of conduct or work health and safety standard, etc.). The nature of the allegation will inform the employer on how to manage the complaint. For example, depending on the gravity of the complaint or grievance, it may be appropriate to suspend an employee from work while further steps in the disciplinary process are followed.
2. Planning the investigation
Workplace investigations may be straightforward or complex. Sometimes, it may be mandatory under the law to forward the complaint or grievance to the police or other government agency. It is often prudent for a business to obtain urgent legal advice to understand the compliance obligations of its directors or officers under the law.
One critical early decision for most businesses will be whether to investigate with internal staff or whether an independent workplace investigator should be appointed. There may be no issue with an internal investigation being completed in many cases. However, where potential biases or conflicts of interest are evident, there may be no reasonable alternative to appointing an independent investigator.
In planning a workplace investigation, an investigator may need to prepare a ‘workplace investigation plan’ that tracks progress. This may include considering the types of evidence and witnesses that may be available and how that evidence will be secured. A plan may also involve timelines for the work to be completed, which can assist in setting expectations for those affected by the investigation. At this stage, decisions surrounding how an employer may seek to preserve legal professional privilege may also be considered as part of how the investigation may proceed.
3. Gathering evidence
There are a number of practical issues that must be considered when obtaining evidence as part of any investigation:
- Ensuring information is lawfully obtained
- Complying with any relevant workplace policies and procedures
- Prioritising evidence that may be lost or destroyed (such as CCTV footage, etc)
- Gathering evidence in a way that promotes its integrity (such as through no-leading questions, etc)
- Considering whether there is other evidence that may assist in the assessment of credibility and reliability
- Understanding confidentiality requirements and expectations
Given the potential for conflict to emerge in a workplace while allegations are being considered, ensuring confidentiality and witness protocols are set up and enforced can assist in minimising unnecessary concerns amongst those involved.
In some cases, expert evidence may be necessary. For example, if there is concern that an employee may have acted fraudulently, a forensic accountant may be required to evaluate records. Likewise, allegations relating to breaches of computer or safety protocols may also benefit from expert evidence.
4. Allowing an opportunity to respond
Under section 387(c) of the Fair Work Act 2009 (Cth), failure to give an employee a chance to respond to a complaint or grievance that may see them lose their job is considered in determining if a dismissal was harsh, unjust or unreasonable. The law states:
387 In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
- whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and…
Business realities, modern awards, enterprise agreements, contractual terms, and workplace policies may all influence at which stage in the disciplinary process an employee is first given an opportunity to respond. The notion that employers should allow employees to respond to potential disciplinary action has been long established. Concerning a similar provision replaced by section 387 of Fair Work Act 2009 (Cth), it was said by Moore J in Wadley v YMCA Canberra  IRCA 568:
“In my opinion the obligation imposed on an employer by that section has, for present purposes, two relevant aspects. The first is that the employee must be made aware of the allegations concerning the employee’s conduct as as to be able to respond to them. The second is that the employee must be given an opportunity to defend himself or herself. The second aspect, the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.”
As the above statement shows, failure to provide a genuine opportunity to respond may cause a successful claim against a business or organisation. The opportunity to respond may take several forms, such as a meeting, interview, or request for written responses to allegations, proposed findings and proposed disciplinary decisions.
5. Considering the evidence
In some cases, an investigator will also be the decision-maker and must make findings based on the information or evidence obtained through the investigation. Although a business is not bound by the rules of evidence, if there is a dispute about any steps in the disciplinary process or the outcome of it, then the rules of evidence may be considered by a court or tribunal.
It is not uncommon for inconsistencies between a complainant and respondent, as well as amongst witnesses. The standard of proof to be applied to findings is the balance of probabilities. It was explained in the High Court case of Briginshaw v Briginshaw (1938) 60 CLR 336 at page 362 that when the law the proof of any fact, it requires “an actual persuasion of its occurrence or existence… It cannot be found as a result of a mere mechanical comparison of probabilities”. The judgment goes on to explain what may reasonably satisfy a decision-maker on the balance of probabilities:
“… reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer… In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
As such, in making findings in relation to a grievance or complaint, the following ought to be taken into account:
- The nature of the allegation (ie, seriousness or triviality);
- The inherent likelihood or unlikelihood of the allegation; and,
- The consequences that follow from the finding of fact.
It may be found that the allegation is proved (substantiated) or not proved (unsubstantiated). In some circumstances, an allegation may be partly proved. It is important to clarify what has been accepted or rejected, as it may affect the appropriate disciplinary decision.
6. Delivering findings and recommendations
Generally, formal workplace investigations will result in a report outlining the allegations, evidence gathered, responses provided by the respondent, and the factual findings. In some cases, independent, external investigators may also be asked to make recommendations for what steps an employer should take regarding the issues raised. However, it is a matter for the employer (decision-maker) to accept or reject any findings or recommendations. For that reason, a decision-maker is not bound to follow the findings and recommendations of the investigator.