Workplace investigations are important for both employers and employees

Terms of Use

What is a workplace investigation?

Why employers conduct workplace investigations

Workplace investigations enable employers to understand the facts and identify the issues relevant to resolving allegations or disputes. They typically involve an examination of an allegation of wrongdoing against an employee.

Employers are often balancing a number of interests in commencing a workplace investigation.

Understanding why employers conduct workplace investigations can help those affected by them to better appreciate their own rights, responsibilities, and options. For an employer, a workplace investigation can serve the following purposes:

1. Enforce workplace standards
2. Comply with legal obligations
3. Minimise legal risks

1. Enforcing workplace standards

Most workplaces have policies and procedures that set expectations about behavioural standards for the workplace. Such policies and procedures may not just set standards for how employees must conduct themselves but also how employers will respond to alleged or suspected contraventions of them. Policies and procedures guide the resolution of concerns, complaints and grievances. They may specify when a workplace investigation is necessary.

A workplace investigation can be a means to enforce employment standards in a manner that is fair, consistent and predictable. Departures from policies and procedures can be a sign of unfairness, potentially seeing decisions overturned and compensation ordered.

2. Complying with legal obligations

There are many legal obligations that individuals, businesses and organisations owe under various laws. For instance, some allegations may trigger mandatory reporting obligations to law enforcement agencies, work health and safety regulators, professional or industry bodies, or insurers. Failure to comply with legal obligations can obviously carry legal consequences.

In some cases, employers have obligations under whistleblower protection laws, including those with respect to public interest disclosures. Mishandling issues of this nature can prompt regulatory investigations and action, as well as potential disciplinary consequences for those charged with managing such issues.

Examples of workplace investigations that may relate to compliance with legal obligations are sexual harassment, workplace bullying, and discrimination complaints. Such complaints are likely to require consideration by the employer of their work health and safety obligations to employees, at the very least. In Australia, the law requires employers to protect employees from sexual harassment, workplace bullying, and discrimination. Employers who do not properly handle issues of this nature can be exposed to direct or vicarious liability for the acts of their employees.

3. Minimising legal risks

Every business has an interest in providing a safe workplace and managing reputational risks, as well as advancing its productivity, profitability, and goals. A workplace investigation that is conducted properly contributes to all of those ends. If handled poorly, not only are those interests put at risk, legal and regulatory action may follow.

A workplace investigation may not just involve a question of disciplinary action for a respondent. Concurrent actions can be raised by a person who feels aggrieved in a number of ways:

• adverse action claims;
• anti-discrimination claims;
• breach of contract claims;
• human rights complaints;
• work health and safety complaints.

An investigation into a complaint or grievance may therefore form part of the risk-management strategies of an employer. However, unfair workplace investigations themselves create legal risks. Any investigation at work that is unfair creates risks for employers and exposes them to successful legal claims.

The decision to investigate

Essential questions for workplace investigations

Is an investigation necessary?

Workplace investigations can arise for any number of reasons. Examples of why an employer or manager may contemplate a workplace investigation include:

• The need to resolve a complaint or grievance
• Concerns about underperformance
• Issues involving work health and safety
• Concerns about conduct affecting the workplace
• Workplace inefficiency concerns

The nature of the concern may influence the type of response that is appropriate. Of course, a workplace investigation will not always be necessary or appropriate. There are many situations where it may be preferable to address an issue through informal discussions, mediation or additional training. However, some issues may only be properly resolved through a formal workplace investigation, such as disputed allegations relating to sexual harassment, workplace bullying, or discrimination. Some complaints clearly give rise to work health and safety risks and the failure of an employer to properly respond may increase the likelihood that they themselves will face consequences for any resulting harm.

It is always important for employers to have regard to the relevant industrial framework. Modern awards, enterprise agreements, employment contracts, and policies and procedures may give rise to certain requirements regarding workplace investigations. The failure to properly deal with issues in accordance with such arrangements can expose an employer to successful claims. For example, in Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177, the Full Court of the Federal Court found that the employer had breached its employment contract with an employee by failing to comply with its own investigation policy.

What is the nature of the allegation or issue?

The more serious the allegation or issue, the more likely an investigation will be warranted. For example, an allegation may call into question the confidence an employer could have in their employee. If so, it is more likely an investigation of some kind will be warranted. On the other hand, an employer may receive a complaint or grievance over a relatively minor issue, in which case there may be good reason to avoid an investigation altogether and instead resolve it through an informal discussion or mediation.

Who should investigate the allegation or issue?

While a business operator or manager may know they will be the one who has to decide what to do about an allegation or issue, it does not mean they must also be the one to conduct the investigation. There are a range of considerations that should go into deciding who should conduct a workplace investigation, including whether:

• there will be bias (actual or apprehended) if an internal employee conducts the investigation;
• the business or organisation has the resources to investigate;
• the seriousness or complexity of the investigation requires an expert investigator; and,
• the allegation or issue ought to be referred to a regulatory body or law enforcement agency.

Employers need to consider whether an allegation must be – or ought to be – referred to a regulatory body or law enforcement agency. In some cases, failure to appropriately refer an allegation or issue to a regulator or law enforcement agency will itself constitute a breach of the responsibilities of the employer.

Answering the question ‘Who should investigate the allegation or issue?’ may also require reference to relevant awards, enterprise agreements, employment contracts, and policies and procedures. The answer necessarily affects the type of workplace investigation to be undertaken.

Types of workplace investigations

The four types of workplace investigations

There are essentially four different types of investigations that employers should contemplate if there is a need to conduct a workplace investigation:

1. Preliminary investigations
2. Internal investigations
3. Guided investigations
4. External (independent) investigations

1. Preliminary enquiries and investigations

A preliminary enquiry or preliminary investigation often arises in response to vague, uncertain or inadequate information. It may relate to suspected wrongdoing such as fraud against the company, or misuse of confidential information. A business or organisation may undertake a preliminary enquiry or investigation in order to protect its interests and decide what response, if any, is warranted in the circumstances. Such preliminary investigations are aimed at identifying the issues, rather than putting allegations to a respondent. From the preliminary enquiry or investigation, it may become apparent that training or coaching is necessary to resolve an issue, or that the issue requires a full investigation.

A preliminary investigation may be appropriate where a business or organisation is concerned about something that has occurred or is occurring but does not consider specific findings of wrongdoing to be necessary or desirable. An example may be where there is apparent conflict among workers that can be resolved through mediation or coaching, rather than a process that may lead to disciplinary action.

2. Internal investigations

Many larger businesses and organisations have internal managers, dedicated human resources professionals and in-house counsel that have the expertise to conduct complex investigations into serious allegations. Having large internal resources to draw upon often means a procedurally fair investigation can take place, often within tight timeframes.

The advantage of an internal investigation for a business or organisation is that the investigator will often have a clear working knowledge of the relevant policies and procedures, as well as the unique operations and culture of the workplace. Whilst knowledge of operations and culture are potential sources of bias, provided such issues are properly managed and the investigator maintains an impartial position such investigations can commence and conclude in an efficient way.

The main drawback to an internal investigation relates to the unpredictable nature of some investigations, which can see conflicting witness accounts requiring evaluation. Where individuals have a long history in an organisation, there is a greater risk that perceptions of bias will arise. Such was the case in Adachi v Qantas [2014] FWC 518, where an internal investigation was called into question because of a long-standing relationship between the investigator and one witness. The decision to dismiss the employee based on that investigation was subsequently overturned, and the employee was reinstated.

3. Guided investigations

A guided investigation is one where a business or enterprise seeks to conduct an internal investigation but in doing so obtains external guidance, often from a law firm or investigation agency. The benefit of a guided investigation is it matches the advantages of an internal investigation while minimising the risk that it will not withstand review by a court or tribunal.

Guided investigations are often suited to small to medium-sized businesses and organisations that wish to complete an internal investigation but which may lack the experience or expertise with respect to any of the following aspects of an investigation:

• Managing procedural fairness requirements
• Drafting allegations and particulars
• Conducting witness interviews
• Obtaining and analysing evidence
• Preparing investigation reports

In a guided workplace investigation, an experienced lawyer may be able to provide guidance on all aspects of the investigation, or simply one aspect of it. Whilst a guided workplace investigation may afford employers greater confidence in being able to run a procedurally fair process, in some cases there may be no alternative than to initiate an external (independent) investigation due to perceptions of bias or conflicts of interest.

4. External (Independent) investigations

An external, independent investigation allows a business or organisation to have allegations or issues investigated impartially, so as to allow a procedurally fair process to occur. Such investigations are often appropriate for serious allegations of wrongdoing and, in particular, when managers are implicated. A thorough and independent investigation allows decision-makers to understand the allegations investigated, evidence obtained and findings made, so as to make decisions based on those matters.

In some cases, an employer may seek to preserve its legal professional privilege with respect to an investigation, which can see lawyers for the business or organisation engage the external investigator. In working with a law firm and external investigator, employers maximise the advice and information available to them, as well as the independence of any investigation, so as to consider their legal options prior to making any decisions.

Do you face a workplace investigation?

Important considerations

Steps in workplace investigations

There are many possible formulations of the steps for a procedurally fair workplace investigation. However, the six basic workplace investigation steps are as follows:

1. Deciding whether to investigate
2. Planning the investigation
3. Gathering evidence
4. Allowing an opportunity to respond
5. Considering the evidence
6. Delivering findings and recommendations

Understanding the common steps involved in workplace investigations can be useful for those affected by them.

Employee rights in a workplace investigation

Employees facing workplace investigations have a number of rights or are owed a number of obligations by their employer. Commonly, employee rights in investigations include:

• Procedural fairness
• Confidentiality rights
• Legal or union representation
• Privilege against self-incrimination
• Reasonable accommodations
• Work health and safety rights

Understanding these rights can be important in navigating any workplace investigation.

Employee responsibilities in a workplace investigation

In workplace investigations, in addition to employee rights, there are responsibilities. The source of employee responsibilities can be varied. They may arise under laws relating to employment contracts, specific laws, or the policies and procedures an employee may be expected to adhere to in a given workplace.

Employees must generally comply with reasonable directions from their employer, including conditions imposed as part of a workplace investigation.

For workplace investigations, respondents generally have the following obligations:

• Act honestly and frankly
• Maintain confidentiality as reasonably required by the workplace investigation
• Not take adverse action against a complainant or witness
• Participate in the workplace investigation

There are exceptions to these general obligations. As such, it is always necessary to take a tailored approach when responding to workplace investigations.

Failing to uphold your responsibilities as part of a workplace investigation can have consequences. It may jeopardise the effectiveness of any response you provide, among other things. Obtaining early and authoritative advice from an experienced employment lawyer can assist you in understanding your rights, obligations, and options.

Responding to a workplace investigation

A workplace investigation presents both risks and opportunities. For the respondent, the main risk is facing potential findings that may have reputational, professional, and financial consequences. However, workplace investigations also present an opportunity to ‘clear your name’ and move forward.

If you need to respond to a workplace investigation, there are six steps that can help you to do so effectively:

1. Review relevant laws and policies
2. Gather supporting evidence
3. Identify what you accept or reject
4. Consider your rights and options
5. Get advice from a lawyer
6. Respond calmly and purposefully

Work can be one of our defining characteristics, or at least play an important part in how we perceive ourselves. It is important not to underestimate the impact an allegation, grievance, or complaint in the workplace can have on the person facing it. This firm defends executives and employees who face investigations and wish to put their best foot forward.

Challenging an unfair workplace investigation

It is not uncommon for people to have misgivings about the fairness of a workplace investigation they may be subject to, yet still ‘hope for the best’ in the belief that it may be held against them if they challenge issues during the investigation. While this is an understandable thought, it can backfire. Failing to make a timely objection to something may be taken into account as being the product of disappointment with the process only in the aftermath.

Deciding to raise objections to aspects (or the entirety) of a workplace investigation requires careful consideration. However, where the concern relates to something that may adversely affect the conclusions reached by an investigator, it can be important to consider what impact it may have on the ultimate outcomes. Examples of instances where an investigation may be challenged include the following:

• Bias or perceptions of bias on the part of the investigator;
• Investigators acting inconsistently with the law or procedures relevant to the particular investigation;
• Allegations that are general, vague or do not disclose their basis; and,
• Failure to disclose key evidence or give notice about possible adverse findings.

Generally, though not always, the longer a process goes on the harder it is to seek alterations to it. For that reason, anybody who holds concerns about the fairness of an investigation into workplace bullying allegations ought to seek advice from an experienced employment lawyer at the earliest opportunity.

About Author: Andrew Anderson

If you are looking for a workplace investigation lawyer, Andrew Anderson has significant experience in helping people to respond to a workplace investigation. He assists executives, managers, and employees across Australia by:

• providing advice and guidance
• drafting letters and responses
• negotiating settlement agreements
• litigating disputes in courts and tribunals