Workplace investigations may seem like an extravagance but the reality is they could save you both time and money. So when should you do one? And when should you go one step further and enlist outside help?
Workplace investigations sometimes seem extravagant – HR overkill I’ve heard them called - but often they’re 100% necessary. Without conducting one, you may leave your business exposed, create severe cultural issues amongst your people and cost yourself serious money in lost revenue, lost productivity and damage to your reputation.
So how do you know when you need to do a proper workplace investigation? And when is it time to go one step further and call on outside help?
The three times you really need an investigation
Generally, we think there are three times you really need to conduct a proper workplace investigation.
1. When you think someone may have engaged in conduct that’s worthy of dismissal or disciplinary action. This might include a serious breach of one of your rules or policies or even something illegal such as theft or fraud. It could also include fighting, bullying or a serious safety breach.
2. Where an employee lodges a complaint about a colleague's behaviour; especially where there are allegations of bullying or harassment.
3. When an employee claims they’ve been subject to ‘adverse action’ under the Fair Work Act. Examples of this include discriminating against or injuring an employee or sacking them for exercising their workplace rights.
There are also other, less black and white situations where a workplace investigation may be required. If you're in any doubt, our list of the risks of not undertaking an investigation may help you decide if it's worth it not to do so.
What are the risks of not carrying out an investigation?
The risks of not doing a workplace investigation - or of not doing it properly - are many and varied; even without the Fair Work Commission getting involved. They range from damage to reputation (for instance, an aggrieved employee contacting the media) through to the potential loss of revenue this may bring.
From an employment law perspective, there are three main risks:
● The risk of not providing procedural fairness. If you’re investigating a complaint, you need to provide this to both the person you’re investigating and the person who brought the complaint against them. Many a claim has been awarded to an employee where the decision would have been different had there been procedural fairness in the employer's actions.
● The risk of not effecting a valid dismissal. If you don’t carry out a proper investigation and dismiss someone, they may be able to bring a claim against you, even if you had a valid reason for dismissing them.
● The potential for a bullying claim. Case law suggests that you should thoroughly investigate bullying claims even when the alleged victim is hesitant. For instance, in Swan v Monash Law Book, an employer faced a damages bill of $600,000 after delaying an investigation into a bullied employee, even though the employee herself asked them not to investigate the claim.
When to call in outside help
Finally, it’s not always a good idea to conduct a workplace investigation yourself. Most obviously, you may not have the resources in-house to do it justice. But there may be other reasons to use someone external, too. These include:
● Where it’s difficult to maintain the perception of impartiality and due process. For instance, where any investigators are close to someone who’s the subject of the investigation.
● Where there is a potential risk of liability for unfair dismissal, criminal activity or other legal action to people involved in the process.
● Where there is likely to be a concern over the way the investigation is run or questions about its overall fairness.
● Where the complaint has been made about someone senior.
● Where the allegations are serious.
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