Recently a very good article was published about Sexual Harassment in the workplace on the Monash University Impact web site: https://www2.monash.edu/impact/articles/legal/workplace-sexual-hara...
I particularly liked this comment:
“A workplace investigation should not be used to minimise, silence or diminish a person’s complaint in the interest of protecting an organisation’s reputation but instead needs to be a tool used to address the issue and eliminate the risk of future unacceptable conduct.”
HR professionals and managers can often be in a difficult position especially when the person subject of the complaint is in a senior position as is often the case in power in balance harassment situations. Equally as difficult is that in many cases, the parties are known to HR, making it very difficult to conduct an impartial and unbiased investigation.
As a result, when investigating sexual harassment complaints careful consideration must be given to the choice of the investigator.
When selecting an internal or external investigator it is important to ensure that the person has:
1. The skills to plan and conduct the investigation, including complaint analysis, investigation & interview planning, conducting interviews and report writing.
2. Experience in conducting the entire investigation and providing a report that will withstand the scrutiny of a court or tribunal.
3. The time to be able to devote to and prioritise the investigation.
4. The willingness to conduct the investigation. If you have been asked to conduct an investigation and you don’t believe you have points 1, 2 and 3 it is important to voice your concerns and push back.
5. The ability to be unbiased and not subject to any conflicts of interest. This can be very difficult during internal investigations.
If you are using an external investigator/consultant you must ensure that:
The investigator is licenced and qualified. To conduct a workplace investigation an external investigator must hold a Commercial and Private Enquiry Agents (CAPI) Licence administered by the NSW Police Security Licence Enforcement Directorate. Conducting an investigation without a licence is an offence under sections 5 and/or 11 of the CAPI act with substantial fines.
If you engage an unlicenced, unqualified and/or inexperience investigator, the investigation and end product, the report may be flawed. The process may cause more damage to the organisation and the parties. I recently reviewed an investigation conducted by an the unlicenced and unqualified investigator where it was obvious from listening to the audio recorded interviews that the interviewer had formed opinions as to the truth of the victims claims and actually argued with the victim during the interview and also made supportive comments to the alleged perpetrator. Thankfully the HR manager formed the same conclusion and asked for the investigation to be reviewed.
For an organisation a major risk of engaging an unlicensed investigator is that if the investigator finds against one or other of the parties and the matter goes to a court or tribunal, a decent legal representative could argue that the investigator was not a person authorised under the law to conduct the investigation and therefore their report should not be admitted into evidence or their findings disregarded. This could cause your defence to collapse.
When engaging an external investigator I recommenced that you require an investigator to provide the following;
If an investigator cannot provide the above, I would question their capacity.
Remember you get what you pay for. If you want a professional investigation where the investigator will stand behind the process and the report if the matter goes to a court or tribunal, then get a professional investigator in the first place. Part of the job of the professional investigator is to take your stress away, not add to it. AWPTI can assist you in this regard:
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