Failing to Involve HR and Other Investigation Mistakes

Being able to conduct a competent workplace investigation is essential for employers, especially when allegations of bullying, misconduct or inappropriate office behaviour are made. 

Mistakes made during an investigation may result in serious consequences, including legal action. 

Let's take a look at the basics of an investigation, and some key mistakes to avoid.

WHY ARE WORKPLACE INVESTIGATIONS NECESSARY?

Workplace investigations are used to establish whether conduct or incidents occurred as alleged by the complainant, and to ensure that appropriate action is taken. 

Investigations are necessary when:

  • An employee may have engaged in behaviour which could result in disciplinary action or termination;
  • Complaints or reports of inappropriate conduct are received;
  • Allegations have been made by one staff member against another - such as claims of workplace bullying, harassment or unreasonable performance management.
  • There is evidence of breaches of safety provisions or other procedures.
  • There are allegations of child abuse. 

WHAT DOES AN INVESTIGATION INVOLVE?

An investigation involves the unbiased gathering and evaluation of relevant and objective evidence, for example by interviewing witnesses and involved parties, reviewing documentary evidence, and or doing a site inspection. 

The conduct, once it established that it occurred, is then measured against the organisation's policies and procedures, Code of Conduct, regulations or legislation, to determine whether a breach has occurred.

WHAT ARE SOME KEY INVESTIGATION MISTAKES?

Significant mistakes which can occur during an investigation include:

  • Failing to consider all the relevant evidence - for example, by failing to interview all relevant parties, not asking appropriate questions or failing to document all information collected;
  • Appointing the wrong investigator - for example, by appointing an investigator who is not seen to be independent or who lacks experience in conducting workplace investigations; 
  • Not reporting a complaint to Human Resources and a failure to seek advice;
  • Not allowing the participants procedural fairness by failing to inform them accurately of the complaint against them, failing to give them adequate time to prepare a response or failing to inform them of their right to have a support person present. 
  • Failing to anticipate all the potential risks that could arise during an investigation
  • Failing to provide appropriate notification to all the relevant parties; and
  • Breaching privacy obligations 

SO, WHO SHOULD INVESTIGATE?

The appropriate person to investigate is often determined by the nature of the complaint or allegation - depending on the situation, it may be appropriate to have a senior manager or a member of the Human Resources department review an allegation. 

Avoid actual, perceived or potential conflicts of interest. The investigator must be a neutral party, not someone who is closely connected to the matter, who has had prior involvement in it, who has a direct interest in the outcome or may be a witness in the matter.

When determining who to appoint as an investigator, it is also crucial to assess who has the right level of experience and appropriate skills. 

This was highlighted in a High Court case involving Patrick Stevedores, where an HR manager was appointed to conduct a serious misconduct investigation. However, her lack of experience meant that she failed to gather crucial evidence supporting the dismissal of an employee - who was ultimately found to have been unfairly dismissed.

SHOULD AN EXTERNAL OR INTERNAL INVESTIGATOR BE APPOINTED?

In some circumstances, it may not be appropriate to investigate a complaint in-house. Some reasons to appoint an external investigator include; 

  • Internal staff may lack the required skills or knowledge;
  • There is insufficient internal capacity to focus on an investigation; 
  • Allegations have been made against a senior employee, who in other circumstances may be the one tasked with an investigation; 
  • There are concerns an internal investigator may be perceived as being biased and a higher level of neutrality and objectivity is required.
  • The issues raised are complex and/or involve a large number of people in the organisation or significant external oversight. 

If the allegation involves an internal procedure or a matter involving particular expertise (such as a medical incident occurring in a hospital) then it may be more appropriate to engage an internal investigator, or have both external and internal investigators working together. 

RISKS OF AN INVESTIGATION BEING CONDUCTED INCORRECTLY

There are many situations in which a poor workplace investigation can have serious consequenced for a business. It can lead to adverse legal action - such as in the Patrick Stevedores case. It can also result in serious mental health implications for staff who are unfairly treated during the investigative process, with a subsequent increase in resignations or terminations. It can also result in failure to meet legal or procedural requirements set by external oversight bodies. 

LESSON FOR EMPLOYERS

When making decisions in relation to workplace investigations, employers should:

  • Ensure that employees are aware of existing internal policies about harassment and discrimination and conduct regular training in these areas;
  • Have a regular system for updating and reviewing policies and procedures, including complaints procedures;
  • Select an appropriate and impartial investigator;
  • Respond promptly and undertake enquiries in relation to each complaint or allegation to determine whether a formal investigation is required;
  • Evaluate all facts with a view to reaching an adequately reasoned conclusion in the circumstances of an allegation;
  • Inform the parties involved of the outcome of the investigation.  

Are you concerned about a lack of knowledge or the risk of making mistakes in your workplace investigations? WISE Workplace is able to offer both full and supported investigation services. In addition, we can train your staff in how to conduct effective workplace investigations.

Read @ WISE

Views: 486

Comment by Bernard Keith Althofer on May 18, 2018 at 9:30

Great article Vince. 

Over the years, when I have spoken with individuals who have made complaints about bullying; with others who have been investigated because of bullying allegations; or with managers who have been required to investigate allegations, the following are key points that impacted on the investigation outcome.

1. Individuals who have little to no supporting documentation with no record of witnesses, or an extremely long list of witnesses

2. Time limit being put on an external investigator e.g. 12 hours to read policy and procedures, interview all parties and write a report

3. Lack of planning by investigator e.g. seeking short form advice on what to look for during the investigation without reading the policy and procedure

4. Setting an unreasonable time frame for the investigation interview e.g. interview to occur in one hour but point 3 has not been covered

5. Failing to recognise or understand that the alleged bully may be well versed in policy and procedures

6. Setting out to finalise the investigation with a predetermined outcome in mind or dictated from on high e.g. the investigation is the formal process to justify a decision that has already been made

7. Telling all involved the confidentiality aspects and then 'leaking' specific information about the investigation

8. Asking witnesses leading questions about specific behaviours that were not the subject of the complaint e.g. did you see X yelling and shouting at Y, when the alleged bullying involved non physical or verbal bullying, but involved administrative bullying i.e. bombarding the target with emails daily and then castigating them for not completing the workload or meeting impossible deadlines

9. Trying to deal wih a matter in house for various reasons e.g. trying to protect a person who is achieving outcomes, or who is connected

10. Forcing a target to go directly to mediation without conducting an investigation, and then 'coercing' the target into resignation

11. Agreeing to mediation without a full understanding of whose behaviour will be raised, and not withdrawing from the mediation to allow those named an opportunity to respond to allegations being raised without their knowledge.

12. Having a culture where individuals are actively discouraged from reporting counterproductive behaviours and ensuring that a climate of fear exists where targets and witnesses know that reporting behaviours will result in victimisation.

13. Failing to review the scope of an investigation when additional factors or issues are raised by targets, alleged bullies or witnesses, or by the investigator

14. Engaging a provider to conduct and investigation and take statements when an 'investigation' has already been conducted and a decision has been made

There are potential risks to all parties when an investigation is not undertaken to a high standard or treated seriously.

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