Conducting workplace investigations into employee misconduct or complaints such as bullying, harassment or sexual harassment should be fairly straight forward and not beyond the skill set of managers or generalist HR professionals or is it?
Consider the case of Paulson v Industrial Relations Secretary (Department of Justice) heard at the NSW Industrial Relations Commission to final decision in July 2017.
The case involved 42 allegations of misconduct made against the applicant a NSW Sheriff's Officer. The investigation found that 34 of the 42 allegations were substantiated and as a result the department made the decision to terminate applicant’s employment after giving him the opportunity to resign.
At the hearing, that lasted 3 days the IRC found that the majority of substantiated allegations were not proven on balance of probabilities and the proven allegations were not sufficiently serious to justify dismissal. It should be noted that the investigator was subjected to extensive cross examination during the hearing.
This matter involved an extensive and lengthy investigation the full copy of the report which, with annexures ran to 429 pages involved interviews with 11 witnesses and the respondent.
At any hearing whether it be at the IRC or Fair Work Commission the investigators findings, methodology and decisions made during the investigation may be subject to examination by the tribunal.
In this matter the IRC found that the dismissal harsh however reinstatement and re-employment was impracticable, compensation of 13 weeks pay was ordered.
During the course of workplace investigations the analysis of evidence with a view to making findings as to whether or not any allegations are substantiated is a critical part of the investigation process and requires a comprehensive understanding of the concepts of the burden of proof and the balance of probabilities and the ability to back up your findings with the evidence and reasoning that will satisfy both.
A good investigator must be able to analyse the circumstances of the misconduct or complaint, gather all of the available evidence to support findings and to be able to report the findings in a clear and concise manner.
In many cases the final decision to terminate the employment is based on the final investigation report, it is therefore paramount that workplace investigations are carried out by highly skilled professional and experienced investigators.
Who should you call to conduct workplace investigations
Engaging an external investigator
The biggest question when engaging an external investigator is, who do I call?
Most organisations don’t have to deal with complaints, grievances and allegations of misconduct on an daily basis, so when an external investigator is required they really don’t know what they are getting. Here are some suggestions;
A smaller investigation firm -The highly recommended option.
Advantages: Often a small group of hand picked investigators with high skill and experience levels.
Disadvantages: Less investigators means less availability, I recommend developing a relationship with a trusted firm to get priority service, contact us for details email@example.com
Large investigation firm
Advantages: Availability as a result of more investigators
Disadvantages: Quality could be an issue, do you know who you are getting, who is actually going to do the investigation?
Advantages: Knowledge of the law
Disadvantages: A possible lack of experience conducting investigations after all it’s not their core business.
Many law firms have relationships with consultant investigators to overcome a lack of internal skill and experience.
Other Professionals (HR consultants, mediators, counsellors, therapists, psychotherapists)
Advantages: None that I can see, as an investigator I wouldn’t advise on recruitment or family therapy the same should apply (in my opinion)
Disadvantages: Lack of skill and experience conducting investigations. They will likely be unlicensed with no actual investigative qualifications. Investigative skill may be an issues especially when it comes to interviewing.
Qualifications and licences required
If you are going to outsource you should be aware that in most Australian states investigators are required to be qualified and licenced. In NSW investigators must hold a Certificate III in Investigation Services and an applicable licence other states have similar provisions.
Certain persons including Police and legal practitioners holding a current legal practising certificate are exempt under the Act.
You can check is an investigator is licenced here
To investigate matters involving Commonwealth Government departments investigators must hold Certificate IV in Government investigations as per the Australian Government Investigation Standards.
It is wise to ensure that the investigator has public liability and professional indemnity insurance.
The backgrounds of workplace investigators are varied, however we recommend that you consider investigators who have a background that involves investigation, interviewing, gathering analysis of evidence, report writing, presenting evidence at court/tribunals and a strong knowledge of the law. Many very good investigators have a policing background.
How do you find an investigator?
When issues arise organisations usually have two choices when they decide to outsource;
(1) Go to Google – If you choose a workplace investigator or investigation company from the front page of Google, does that mean you are picking a good investigator or just one that has spent money on SEO or Ad Words?
(2) Engage someone you know, someone you trust, someone you have at least met and discussed your needs with, someone whose background, experience and qualifications you have reviewed. This article may be of assistance – http://awpti.com.au/workplace-investigator/
In relation to Google, Australian Workplace Training & Investigation (AWPTI) ranks highly on Google in a number of investigation and training categories, I haven’t spend a cent of SEO, however I do publish a lot of interesting and I think helpful material via my website blog page http://awpti.com.au/blog/ and via LinkedIn https://www.linkedin.com/in/philobrien1/ (if we are not connected, please feel free to send me a request).
I am always open to meeting with organisations to discuss how I can assist them with a view to developing an on-going relationships.
Choosing the right investigator can save you time, money and worry, getting it right the first time every time is essential.
AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations
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