Deciding to Investigate

The first task of a HR representative is to make a decision as to whether an investigation to a complaint is required. Not every complaint by an employee requires investigation. There are other ways to resolve a complaint rather than a workplace investigation. This includes facilitating informal communication between the complainant and the employee(s) being complained against (the accused employee), or conducting a mediation between the parties.

Factors a HR representative may consider before deciding whether to conduct a workplace investigation are:

1. whether alternative methods can resolve the complaint;
2. whether the complaint is obviously frivolous or vexatious;
3. the seriousness of the complaint – the more serious the complaint, the more an investigation is warranted.

Preparing the Investigation

If a decision has been made to conduct a workplace investigation, the HR representative must decide whether to conduct an external or internal investigation – that is, whether the business will be responsible for conducting the investigation or whether the business will acquire the services of an external workplace investigator to conduct the investigation.

If the workplace investigation will be conducted internally, the HR representative must:

1. decide the scope of the investigation – that is, how wide the investigation will be. It is recommended that the employer obtain legal advice before making a decision on this issue;
2. decide who will be the investigator. This will require the employer to consider the seriousness of the allegation(s) as the more serious the allegation, the greater the need to engage an independent investigator from outside of the employer’s business or organisation. It is worth noting that if the employer is being accused, engaging an independent investigator becomes even more crucial in ensuring that the investigation is conducted in accordance with the principles of natural justice;
3. decide who will be the final decision-maker(s); and
4. identify all witnesses relating to the complaint.

It should be noted that a more serious incident may trigger an obligation for the employer to report it to WorkSafe, the police or another agency, government department or organisation. Employers must be aware of these obligations to avoid a possible fine or even imprisonment.

The Investigation

The investigation process will involve communicating/meeting with all personnel related to the complaint, gathering all available evidence, and forming a conclusion. Businesses must ensure they comply with the principles of natural justice when conducting the investigation. This can be achieved by:

1. Notifying all key or most relevant parties in writing prior to the investigation that an investigation is being conducted;
2. Notifying the accused employee(s) in writing of the particulars of the allegations being made against them prior to the investigation;
3. Providing the accused employee(s) sufficient time and opportunity to respond to the allegations against them, including giving them the opportunity to provide their own witnesses and evidence;
4. Allowing the accused employee(s) to bring with them a support person, such as a spouse, family member, friend or union representative, if the accused employee(s) is called to a meeting in order to provide evidence or a response to the allegations;
5. Ensuring the investigator or any final decision-maker(s) is not biased towards either party and has no conflicts of interest in conducting the investigation, or deciding the outcome;
6. Reviewing the evidence from all parties and witnesses, and properly considering and responding to this evidence on its merits. In workplace investigations, findings of fact are made on the balance of probabilities. The case of Briginshaw v Briginshaw (1938) 60 CLR 336 states that where the complainant’s allegations are of a more serious nature, there must be stronger evidence to support the more serious allegations for an adverse finding to be made, or for allegations to be found proven.

Once the investigation is completed, the investigator should prepare a comprehensive report of their findings for the final decision-maker to consider.

Resolving the Matter

Lastly, the final decision-maker(s) will make a decision on the complaint based on the findings of the investigator. The final decision will usually be one or more of the following:

1. Warning to the accused employee(s);
2. Written apology from the accused employee(s) to the complainant;
3. Further training provided to the accused employee(s);
4. Termination of the accused employee(s)’ employment – generally reserved for only the most serious cases of misconduct; or
5. No action taken due to insufficient evidence to support the allegations.

This concludes the workplaces investigation process.

Conclusion

Paul Horvath Solicitor hopes this guide helps businesses and employees to assess their rights and obligations regarding workplace investigations. Whilst PH Solicitor understands that the workplace investigation process can be a difficult and complicated process, it does not have to be that way. If you would like to discuss your employment rights or your business’ rights in the workplace investigation process, we are here to help.  Call our office on (03) 9642 0435 or email admin@phsolicitor.com.au for a confidential discussion with our team.

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An employer must understand the legal process associated with a workplace investigation, and its relationship with the Fair Work Act 2009 (Cth) and Fair Work Commission (FWC). Despite many complaints not requiring legal intervention, should the alleged conduct turn into a legal matter after initial findings, it is important employers obtain suitable representation and advice.

Whether to approach a Human Resources consultant or a lawyer depends on the seriousness of allegations and potential consequences which may flow from the outcome of an investigation. Generally, where an employee has engaged in conduct that, if substantiated, constitutes serious misconduct, or where complaints of bullying, harassment or other inappropriate behaviour against another employee are made, an investigation is necessary.

HR consultant or lawyer?

If you are unsure whether your business needs to conduct a workplace investigation into a particular allegation, a consultation with a lawyer is a good place to start for initial advice. A lawyer will be able to point out the requirements of company policies, any applicable enterprise agreement, and the common law with respect to conducting workplace investigations. A lawyer will also be aware of the legal risks and implications which flow from a poorly conducted workplace investigation.

A HR consultant will often help in lessening the tension between parties if they are familiar with those involved, but will likely not be able to approach the investigation with the same detail as a legal representative. A lawyer should be comfortable in providing reasons as to why certain actions should be taken so that the best outcome is achieved.

Although a HR consultant will understand the workplace and its relationships, the detail in which a lawyer can assess all relevant facts, potential witnesses, and conflicting evidence will be crucial to achieving the best result for the accused or complainant, but also the workplace.

The publicity of certain investigations may have a negative impact on business operations, and it is a tough balancing act supporting all parties. Allowing either the complainant or respondent to direct the investigative process is also a fundamental mistake often made, and is a key reason external, impartial legal help should be considered.

Lawyers have a keen awareness of rules of natural justice and procedural fairness which must be applied to all parties to a workplace investigation. If an employee is dismissed as a result of a workplace investigation, that employee may bring an application for unfair dismissal against the employer. If the FWC finds that the dismissed employee was not afforded procedural fairness, the FWC may award compensation to the dismissed employee.

Lawyers also have extensive duties relating to confidentiality as part of their professional obligations. This means they are experienced in handling matters confidentially, discretely and with sensitivity.

There a several steps that need to be taken when commencing a workplace investigation against an employee.  First, all relevant details of the allegations in question must be collated alongside all witness accounts. This allows for any conflicting details between parties to be examined and hopefully solved to provide clarity in the investigative process.

Second, all policies relevant to the investigation must be examined and the specific guidelines that may have been breached. Lawyers are experienced at drafting, interpreting and applying workplace policies, contracts of employment, and relevant enterprise agreements.

Third, a full summary of the complaints made and the steps taken to resolve the issue prior to the investigation should be collated. Any workplace complaint should involve proper preparation, investigation, reporting and resolution. Providing unbiased and objective advice on the alleged conduct is also something that a lawyer can provide.

Given many businesses have an internal HR department, there is the potential for opinions and support for certain individuals to influence an outcome. Engaging a lawyer to deal with the investigation externally will ensure that all perceptions of bias are appropriately managed.

Handling serious workplace investigations must be done with care and attention to detail. This is what a lawyer will do best.

PH Solicitor has significant experience and expertise in workplace relations, investigations and employment law. Should you be the subject of, or wish to initiate a workplace investigation against your employee, do not hesitate to contact us. We will provide expert advice, but also reduce the significant stress that may be a consequence of this type of matter.

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