Workplace Investigators behaving badly

The presence of bias be it actual or perceived during an investigation can derail the entire investigation and undermine any findings and recommendations.

As I mentioned in the previous article, Workplace Investigation Biased process, complaint of bias are often raised relating to two areas, the investigation process itself or the investigation interviews.

This article will examine investigation interviews and the role of the investigator and avoiding behaving badly.

Workplace Investigators behaving badly – Workplace investigations are defined as “an unbiased gathering of evidence” and to ensure that that a complaint of bias is not raised or substantiated it is important to follow these rules when conducting interviews;

  1. Approach each interview with an open mind
  2. Do no make any judgements on the parties before you meet them (regardless of what you have been told)
  3. Always treat each interviewee with respect
  4. Listen to what the  interviewee has to say
  5. Concentrate on the interviewee’s answers not your next question
  6. Do not get into arguments with interviewees during an interview
  7. Never attempt to intimate the interviewee or behave in an aggressive, hostile or arrogant manner
  8. Ensure that your questions are reasonable and admissible should the matter proceed to a court or tribunal
  9. Do not make any judgements on the character of any of the parties
  10. Do not make any judgements on the truthfulness of any of the parties versions of events until all the evidence has been gathered, Remember at times complainants provide half the story, there are always two sides.
  11. Gather all the evidence, not just the evidence that supports the complaint
  12. Do not form a theory and then tailor your interview to seek evidence to support your theory only
  13. Do not attempt to force a confession by intimidation or trickery
  14. Do not make early determinations
  15. If you feel that you have any sort of conflict of interest declare it, manage it or withdraw from the interview

It is important to remember that a workplace interview is NOT an interrogation. If you as an investigator do not adhere to points 1 – 15 above it will affect the credibility and validity of the interview and reflect poorly on you as an interviewer and investigator. Generally breaching any of point 1 – 15 shows the inexperience of the investigator who lacks the confidence or competency to understand the investigative interview process.

It is equally important to remember that the purpose of a workplace investigative interview is NOT to get a confession. Most if not all complainants believe that they are right, that their compliant is valid even if it seems far fetched and unlikely to you. Many respondent believe that they have done nothing wrong.

What do you do if you think that a complainant, witness or respondent is not telling you the truth.

  1. listen
  2. Record
  3. Get clarification
  4. Obtain corroboration (if possible)

You don’t have to challenge the interviewee, remember you do not have to get a confession, the weighting up of the evidence is done during the final report. Interviewing is a skill that requires training and practice, more detail can be found in the AWPTI Interview Manual – http://awpti.com.au/investigation-interview-manual/

Here are are a couple of scenarios to consider.

Scenario 1 – For some reason you have interviewed other parties (witnesses) before the complainant or you have received information prior to the interview.  The witness evidence or other information contradicts that of the complainant. The complainant has already submitted a worker’s compensation claim that relates to their complaint of bullying and harassment. You decide to challenge the complainant making statements such as “I have been told a different story” or maybe “three witnesses have told me that it didn’t happen this way, so why should I believe you” or maybe “your story is different from the witnesses, why don’t you tell me the truth” or maybe “I don’t think it happened this way, would you like to think about that?”

What is wrong with this?

  1. The questioning appears to be hostile and aggressive and will ruin any rapport developed with the interviewee
  2. The questions may be expressing an opinion – your opinion is not relevant at this stage
  3. This is not the behaviour of a professional investigator

What is likely to happen next?

  1. The complainant may complain that you are biased, that you had made up your mind and did not listen to them
  2. The complainant might now state that your tactics during the interview was exacerbated the stress caused by the bullying
  3. Your findings and recommendations my be undermined by your behaviour in the interview
  4. The matter may have to be re-investigated at an additional cost to the organisation.

Scenario 2 – On this occasion you are interviewing the respondent.  The complainant and witness evidence contradicts that of the respondent. You decide to challenge the respondent making statements such as “I have been told a different story” or maybe “three witnesses have told me that it didn’t happen this way, so why should I believe you” or maybe “your story is different from the witnesses, why don’t you tell me the truth” or maybe “I don’t think it happened this way, would you like to think about that?”

What is wrong with this?

  1. The questioning appears to be hostile and aggressive and will ruin any rapport developed with the interviewee
  2. The questions may be expressing an opinion – your opinion is not relevant at this stage
  3. The questions appear to suggest that you already favour the evidence provide by other parties, this may lead to a finding of a lack of procedural fairness in that you did not take into account what the respondent was saying (The right to be heard)
  4. Once again this is not the behaviour of a professional investigator

What is likely to happen next?

  1. The respondent may complain that you are biased, that you had made up your mind and did not listen to them
  2. The respondent may now state that your tactics during the interview have denied them procedural fairness
  3. The respondent may now claim that the interview was bullying as it was not conducted in a reasonable manner
  4. Your findings and recommendations my be undermined by your behaviour in the interview
  5. The finding and final decision may be criticised by a tribunal or court and could result in a successful unfair dismissal application by the respondent if they are sacked as a result of your investigation.
  6. The matter may have to be re-investigated at an additional cost to the organisation.
  7. The respondent may now submit worker’s compensation claim in that the interview was bullying as it was not conducted in a reasonable manner, another headache for the organisation

Here are some suggestions for  employers:

  1. If you don’t know how to conduct a workplace investigation – leave it alone and call in an expert.
  2. If you don’t know how to conduct a workplace investigation interview – leave it alone and call in an expert
  3. If you want to save money and DIY, have your people trained.

A full description of the types of questions that are and are not appropriate in a workplace investigation interview can be found in the AWPTI Interview Manual – http://awpti.com.au/investigation-interview-manual/

Workplace Investigators behaving badly – You must be careful when choosing the investigator, if there is no one in your organisation who is suitably qualified, experienced, confident and has the time to conduct the investigation, you may wish to consider appointing an external investigator who has no prior knowledge of the parties and is able to conduct a completely impartial and unbiased investigation. AWPTI can assist – http://awpti.com.au/investigations/

AWPTI can also provide a range of investigation training programs and products that can assist mangers and HR professional to understand the complex task of investigating workplace complaints.
http://awpti.com.au/investigation-training/
http://awpti.com.au/hr-products/

There are other matters to consider when you are appointing an external workplace investigator are addressed in these articles –
Workplace Investigator who do I choose and why?
What to look for in a workplace investigator
What the Fair Work Commission said about outsourcing investigations
Workplace Complaint Investigations – Do it yourself or call in an e...

Workplace Investigation biased process – 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

www.awpti.com.au
http://awpti.com.au/investigations/
http://awpti.com.au/training/

Views: 58

Add a Comment

You need to be a member of HR Daily Community to add comments!

Join HR Daily Community

© 2017   Created by Jo Knox.   Powered by

Badges  |  Report an Issue  |  Terms of Service