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 investigations may occur, the complexity and effort required for an inquiry will differ from case to case.
There are many possible formulations of the steps for a procedurally fair workplace investigation. However, the six basic workplace investigation steps are as follows:
A business or organisation faced with a grievance or complaint must decide whether to investigate. Many workplaces will have policies and procedures that guide such decisions. A workplace investigation aims to determine the truthfulness or accuracy of the allegation or workplace concern. They are useful in resolving disputes or contested allegations. They can allow employers to make decisions in a reasoned and fair manner.
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 standard, in other cases, it may not be so clear. Before deciding to investigate, sometimes it is necessary to clarify the allegation or concern. Vague allegations or concerns may be challenging to investigate. Moreover, it can deny the respondent a fair opportunity to respond.
2. Planning the investigation
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.
A fundamental issue of planning is deciding who will investigate the matter. That is, whether the employer or organisation will have an internal or external investigator. Where potential biases or conflicts of interest are evident, there may be no reasonable alternative to appointing an independent workplace investigator.
In planning a workplace investigation, an investigator may need to prepare a ‘workplace investigation plan’ that tracks progress. Planning assists in identifying relevant witnesses and in securing potential evidence. A workplace investigation plan may also involve timelines for the work to be completed. This can assist in setting expectations for those affected by the investigation. It is also the time for employers to consider other issues, such as preserving legal professional privilege.
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.
3. Gathering evidence
One of the crucial workplace investigation steps involves the gathering of evidence. There are a number of practical issues 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
There is real potential for conflict to emerge in a workplace while allegations are being investigated. As such, ensuring confidentiality and establishing witness protocols can work to minimise unfair prejudice for individuals involved.
In some cases, expert evidence may be necessary. For example, in cases of suspected fraud, a forensic accountant may be retained. 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), failing 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, investigators ought to take the following 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. Sometimes, investigators are asked to recommend what steps ought to be taken as a result of the findings. 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.
Do you face a workplace investigation?
The purpose of workplace investigations
A workplace investigation involves an examination of an allegation or allegations of wrongdoing against an employee. For an employer, a workplace investigation may also serve the following purposes:
Enforce workplace standards
Comply with legal obligations
Minimise legal risks
The purpose of a workplace investigation is to uncover relevant evidence to allow decisions to be made on a proper factual basis. However, employers are often balancing a number of interests in commencing a workplace investigation.
If you are the subject of a workplace investigation, it is critical to understand the options available to you in responding to it. Understanding the fundamental purposes and aims of workplace investigations should help to shape your response and clarify the options available to you.
Employee responsibilities in workplace investigations
In workplace investigations, in addition to employee rights, there are responsibilities. The source of employee responsibilities can be varied. Employee responsibilities arise in a variety of ways. Whether under employment contracts, specific laws, or internal policies and procedures, employees may have a number of responsibilities regarding their employment.
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 workplace investigations
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:
Review relevant laws and policies
Gather supporting evidence
Identify what you accept or reject
Consider your rights and options
Get advice from a lawyer
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.
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 ought to seek advice from an experienced employment lawyer at the earliest opportunity.
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About Author: Andrew Anderson
While Andrew Anderson has a proven record of successfully representing clients in numerous high-profile cases, much of his work is devoted to resolving issues quickly and discreetly.
Described by the Courier Mail as “one of the best legal minds”, he does not encourage a ‘win-at-all-costs’ attitude, values civility, and works equally with businesses and individuals.
Based in Brisbane, Andrew Anderson operates nationally in representing clients to resolve workplace issues.
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: