Conducting a workplace investigation can be tricky business. Whether you’re investigating serious misconduct or a missing ham sandwich from the shared office fridge, you need to handle investigations delicately to ensure justice is served. Fortunately, there are protocols and procedures you can follow that will help you avoid unwanted attention.

A workplace investigation should be carried out whenever allegations of misconduct are raised in the workplace, whether from management, employees, or clients. Investigations are necessary for businesses to discover what happened, and why, so they can take appropriate action.

So, what does a workplace investigation look like?

Remember, a workplace investigation should be a fact-finding mission. What it looks like in practice may vary depending on the nature of the allegations raised, but this process should involve:

1. Gathering written witness statements and CCTV footage (if applicable);
2. Meeting with the complainant and obtaining all relevant information;
3. Meeting with the respondent and allowing them the opportunity to respond to the allegations;
4. Consider all relevant information and form a conclusion on whether some, all or none of the allegations are substantiated;
5. Meeting with the complainant and respondent to advise them of the outcome; and
6. Decide on applicable action to take, which may involve disciplinary action against the respondent if the allegations are substantiated.

The very first step in an investigation process is to gather the allegations from the complainant in a very detailed and precise form to be able to accurately put to the respondent. Remember, just as an employer has an obligation to investigate allegations of misconduct or inappropriate behaviour raised by a complainant, an employer has an equal obligation to afford the respondent procedural fairness during the investigation process. A crucial element of ensuring procedural fairness is obtained is by writing to the respondent ahead of an investigation meeting and putting the allegations which will be discussed during the meeting to them for their consideration. To summarise, when sending respondent an invitation letter to an investigation meeting, its important employers remember the following:

• Provide a minimum of 24 hours’ notice between sending the letter and the meeting time (this time may need to be extended depending upon the quantum and severity of the allegations raised);
• Offer for them to bring a support person to the meeting; and
• Outline, very clearly, ALL the allegations that have been raised and will be discussed in the meeting. This should include dates, times, people, places, and all relevant details. If it isn’t in the invitation letter it shouldn’t be discussed in the meeting!

Depending on the seriousness of the allegations, it may also be necessary to suspend the respondent while the investigation is finalised. Suspension of employees must occur on full pay and it is not appropriate that an employer direct the employee to take paid annual leave during this time. If you suspend the respondent, you must suspend them on full pay until the conclusion of the investigation process.  It will only be necessary to suspend the respondent if the allegations are serious, including allegations of fraud, sexual harassment or even bullying depending on the circumstances. The reasoning behind suspending the respondent on full pay while the investigation is on foot is so that the employee is unable to access business property (including access to information) and cause damage to the business (if the allegation concerns fraud or theft) or to protect the safety of the complainant (if the allegation involves allegations of sexual harassment or bullying).

How are findings made?

Findings are made on ‘the balance of probability’ test. That is, each allegation must be more probable than not in order to be substantiated. This standard of proof arises from the often-cited case of Briginshaw v Briginshaw  (1938). The “Bringinshaw Test”, or ‘balance of probability test,’ contains a degree of flexibility so that the more serious the allegation, the higher the degree of probability required in order for the allegation to be made out.

Here are some more general tips about the investigative process itself:

1. Maintain confidentiality

Handle investigations with sensitivity and on a need-to-know basis.

Also, consider the information being shared with participants in the investigation. While it’s necessary to share some details in the interest of fact-finding – for example, you wouldn’t get very far if you said someone has accused you of doing something sometime in the last five years – any information that isn’t directly necessary to divulge should be kept confidential.

2. Avoid biases

Your second professional responsibility is to be impartial. It isn’t enough to merely be impartial, you must also be perceived to be impartial. It goes without saying that therefore the person conducting the investigation should not be a person who is involved in the complaint, either as a witness or as the respondent. Therefore, it may be necessary at times for the employer to engage an independent external investigator in order to assure bias is maintained.

3. Be thorough

Law enforcement agencies don’t cut corners when investigating crimes, and neither should employers. Avoid drawing any conclusions or making decisions about the matter until all the evidence has been analysed.

An unfair investigation could lead to an employee being dismissed and the business with no defence against a claim for unfair dismissal. And we all know how inconvenient and damaging those claims can be. As we’ve seen in the media recently, workplace investigations are a complex procedure and can be difficult to get right – avoiding a political circus in your workplace is key. If you’re not comfortable conducting your own investigations or would like help to walk you through the process, we encourage you to seek professional advice.

enableHR has tools to assist with recording and documentation during a workplace investigation.

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