When conducting investigations in the workplace, senior staff and human resource managers often have to deal with uncooperative respondents.
Understandably, this can significantly hamper the progress of the investigation.
There are many ways in which the smooth running of an investigation can be negatively affected by an uncooperative respondent. This can arise when:
It is particularly frustrating to have to deal with a recalcitrant or difficult respondent when other parties to the investigation are adversely affected as a consequence.
For example, some respondents may seek to intimidate other witnesses with a view to discourage them from participating in the investigative process.
When dealing with this type of situation, investigators should encourage witnesses to participate in the process by confirming that their involvement remains confidential, and by redacting sensitive information such as names or identifying details when providing documents to the respondent.
Further, witnesses should be advised that their involvement in the investigative process cannot and will not have any adverse impact on their employment.
When faced with a situation where a respondent is failing to cooperate, an investigator can proceed without their involvement in certain circumstances.
Crucially, it is important that an investigator is able to demonstrate that the investigation proceeded in accordance with all requirements of procedural fairness.
In particular, this means that there must be a document trail confirming all the efforts that have been made to engage with the recalcitrant respondent. There must also be evidence that attempts have been made to explain to the respondent that their non-involvement may impact but will not stop the investigation process.
The intention here is to be able to demonstrate to a court, tribunal or other third-party reviewer that the investigator took all reasonable steps to include the respondent and their point of view in the investigation.
No presumptions or assumptions can be made about the evidence used to determine the substantiation of allegations, if a respondent does not participate in the investigation process.
Although some respondents simply will not cooperate, investigators should provide a raft of different options to encourage respondents to meaningfully engage in the process.
These options include:
For more detailed information on conducting interviews, you can purchase a copy of our book, Investigative Interviewing: A Guide for Workplace Investigators. If you're conducting a workplace investigation and need assistance, contact WISE Workplace today.
WISE Workplace is a multidisciplinary organisation specialising in the management of workplace behaviour. We investigate matters of corporate and professional misconduct, resolve conflict through mediation and minimise the impact of inappropriate behaviour through our whistleblower services.
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