It is an inevitable fact of corporate life that employers will, sooner or later, need to carry out a workplace investigation, formal or informal, into some aspect of behaviour at their workplace.
Workplace investigations can be initiated as a result of:
- a complaint or allegations regarding an employee’s conduct or performance;
- work-related accidents or health and safety concerns; and
- to address systemic issues like absenteeism, or cultural issues in the workplace.
This article will outline some basic guidance on how to conduct a workplace investigation.
What is a workplace investigation?
In a workplace setting, an investigation is defined as a “systematic examination of acts, omissions or events to determine, assess and report on matters pertaining to workplace inability or disciplinary matters.
It is important to remember that a workplace investigation is not a trial or a court case. Instead, the investigator must remain an unbiased fact-finder, and adhere to the principles of natural justice.
Making workplace investigations easier to manage
To make the process easier to manage, it’s important for employers to have clear policies and procedures in place for conducting investigations.
Clear policies and procedures can be helpful in facilitating a workplace investigation. They should make it clear that an investigation may be conducted, outline employees’ duty to cooperate with the investigator, and provide for the possibility of suspension with pay during the investigation. This can make the investigation process smoother and more effective.
Additionally, it is important for the employer to ensure that these documents are easily accessible. This includes ensuring that all relevant employment and personnel records, company policies and applicable industrial instruments are readily available, if needed.
When should workplace investigations be conducted?
Not every complaint or incident requires a form of investigation, it is important to assess quickly whether an investigation will be necessary when faced with a complaint or incident.
Some factors to consider when determining whether to conduct an investigate include:
- is the issue truly a matter for investigation, or is it an interpersonal dispute that may be better addressed through a grievance procedure or mediation?
- is there a risk of reputation? Conduct that could potentially harm the reputation of the company may warrant an investigation to demonstrate that it is of serious concern to the company.
- are the multiple complaints about the same person or the same type of conduct? This could indicate a pattern of behaviour or a widespread problem, justifying a wider investigation.
Note that there are risks associated with deciding not to investigate a complaint or incident. For instance, if a claim of sexual harassment is not investigated, it may potentially lead to litigation where one issue will be the company’s failure to take all reasonable steps to prevent the activity of one of its employees.
Who should conduct a workplace investigation?
Generally, employers have the option to either conduct an internal investigation into the complaint, or to appoint an external investigator. Appointing an external investigator may have several advantages. For instance, employees may perceive them as more neutral, they possess the expertise and skills required to conduct a thorough investigation and to produce comprehensive reports, and it is easier to convince a court or tribunal about the validity of an impartial investigation.
How to conduct a workplace investigation
Although investigations can vary greatly, this article cannot provide a comprehensive guide on conducting every type of investigation. However, the following are some important factors to consider:
- Carefully plan out the workplace investigation – identify witnesses and persons potentially affected by the investigation. Prepare an outline of the questions to be asked and clearly define the objective of the investigation.
- Act promptly – it is important to act promptly to ensure that evidence is still fresh and available. Employees and witnesses may leave and memories fade over time – documents also might be misplaced or destroyed.
- Ensure proper process and follow the rules of natural justice – it is crucial to uphold procedural fairness and natural justice throughout the investigation to ensure its validity and to provide assurance to employees that the matter is being handled fairly.
- Conduct witness interviews – it is important to interview all relevant witnesses and keep a record of the interviews. Generally, it is advisable to start with the complainant (if there is one) and then move onto other witnesses. Finally, the person who is the subject of the complaint should be interviewed and given the opportunity to respond to the allegations. This order allows for a full and fair investigation.
- Maintain confidentiality – both during the investigation and after it.
Key Takeaways
As noted above, failure to investigate a complaint or incident can lead to legal risks and liability. Accordingly, employers should carefully consider the nature of each complaint and incident and determine whether it is appropriate to conduct a formal investigation or whether an informal resolution would be more suitable.
National Employment & Labour Lawyers have a dedicated team who can offer guidance and support in conducting workplace investigations. We offer a free and confidential initial consultation, where we can discuss your situation and provide you with tailored advice. Get in touch with us today!
Disclaimer: The information contained in this article is of a general nature and is not intended to be relied upon as, nor to be a substitute for, specific legal or professional advice.
