When facilitating Effective Workplace Investigations training, participants will often ask me what I believe is the most important part of the investigative process. Naturally, my first thought is… Everything! That is because I believe workplace investigations are an essential part of any robust grievance handling process, and therefore need to be conducted in such a way that procedural fairness is maintained for all involved. Deconstruct the investigative process and you discover a number of steps and principles that nest together to create an effective and fair investigation, and all are important.
But that is not what they are really asking, is it? After breaking the process down it becomes very clear that getting a thorough understanding of what specific behaviour the employee is actually complaining about (as distinct from making a generalised complaint, speculating, or explaining alleged impact on them) is, beyond the existence of policies and processes, not only the first but most important step.
So, if I had to identify one part of the process I consider to be the most important, it would be determining the allegation. Why? Because, among other things, the allegation forms the backbone of the investigation and guides what workplace behaviour policies may be relevant and influences what types of questions should be asked of the complainant, witnesses and respondent. It also assists in identifying what relevant sources of evidence should be considered and, depending on your process, may identify the range of disciplinary sanctions that can be imposed if the alleged behaviour is found to be proven (particularly if it is serious misconduct).
Now at this point I find the participants say “but I have the letter from the complainant, isn’t that the allegation?” Short answer, no. The letter or verbal complaint indicates what the employee wants to complain about, but generally will not be sufficiently comprehensive enough to draft a detailed and procedurally fair allegation. Think about your own experience for a moment and count the times an employee has come to you and said that their boss has been regularly bullying them? What does that even mean, and is there enough information provided for the potential respondent to reasonably respond to? Probably not at this point I would think. It must not be forgotten that the complainant has a role to play in the investigative process, and they need to be prepared to have some skin in the game. After all, it is their complaint so they need to be prepared to provide as much information as possible to substantiate what they are claiming.
To ensure that you have a fully particularised, and in that regard procedurally fair, allegation make sure you have what I call the ‘4Ws and the H’. That is, the allegation should be able to state what is alleged to have occurred, where and when it took place, and to who. It should also describe in detail how the respondent engaged in the alleged behaviour.
For example, consider Mary X, a secretary in your organisation. She comes to you and tells you that she has been sexually harassed on a number of occasions by Peter Y, her manager. After conducting a thorough interview with Mary (a subject for another day), you should be able to come away with something that looks like this (example only, and assumptions made in order to illustrate):
Allegation 1: On 19 December 2015, during the staff Christmas Party at the XYZ Function Centre in Darling Harbour, Sydney, Peter Y asked me at the beginning of the evening (at approximately 8:15pm), and again as I was leaving the party (at approximately 11pm) if I would have sex with him. On both occasions Peter Y put his arm around my shoulders, and hugged me.
When: 19 December 2015, at approximately 8:15pm and 11pm
Where: Staff Christmas Party at the XYZ Function Centre in Darling Harbour, Sydney
Who: Peter Y and Mary X
How: Asked to have sex with Mary X on two occasions (beginning and end of the evening) and on both occasions put his arm around her shoulders and hugged her.
The allegation above clearly describes what is under investigation and there is no doubt about what Peter Y is being asked to respond to (and giving Peter Y the opportunity to respond is the second most important ingredient of an investigation, also a subject for another day).
To recap, allegations are the backbone to the investigation. They inform the investigator about what is alleged to have occurred and ensure they remain ‘in scope’ throughout the process. Additionally, fully particularised allegations allow the respondent to effectively provide a response while also assisting the investigator to identify relevant sources of evidence which may assist in making a finding in respect of the alleged conduct. If time is not spent on this critical part of the process, the investigation may be flawed and open to criticism (internally and externally).
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