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

Complaint of bias are often raised relating to two areas, the investigation process itself or the investigation interviews.

This article will examine the process, part two will examine bias during interviews.

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;

1. Approach the investigation with an open mind.
2. Do no make any judgements on the parties
3. Do not make any judgements on the truthfulness of any of the parties versions of events until all the evidence has been gathered.
4. Gather all the evidence, not just the evidence that supports the complaint
5. Do not form a theory and then seek evidence to support your theory only
6. Do not make early determinations
7. If you feel that you have any sort of conflict of interest declare it, manage it or withdraw from the investigation.

Workplace Investigation biased process actual or perceived is often as a result of an inexperienced investigator who lacks the confidence or competency to understand and carry out the investigative process.

It is important that when all the evidence is gathered to;

1. Review and analyse all the evidence carefully, this requires a high level of skill and experience, an understanding of evidence and evidence law and the standard of proof in civil matter (on the balance of probabilities)
2. Make a decision in regard to what weight you place on each persons evidence without taking into account how you feel about the person or the complaint.
3. Never allow any personal preferences good or bad about anything relevant to the investigation to cloud your judgement.

Once again bias at this point is also usually as a result of  an inexperienced investigator who lacks the confidence or competency to understand the investigative process.

A conflict of interest that could lead to a perception of bias may occur in a number of circumstance including but not limited to;

1. Your position in the organisation
2. Your knowledge, personal views about or relationships with any of the parties
3. Any history you may have with any of the parties
4. Your personal views on the behaviour complained about
5. Pressure placed upon you by the parties involved in the investigation or other such as senior managers
6. Expectations in regard to outcomes

A complaint of bias as a result of a conflicted of interest (actual, potential or perceived) may be hard to avoid if the matter is conducted internally. This is very common problem faced by HR professionals and managers after all you are part of the organisation, you know the people involved, you may have had previous adverse dealings with the person subject of the complaint or grievance.

Respondent may raise a complaint of bias or conflict of interest if the complaints are substantiated and disciplinary action is taken. Complainants may also raise the issue of bias or a conflict or interest if the outcome is not what they expected or desired

In the case of Fitzpatrick v Bunnings [2014] FWC 1869, the Fair Work Commission found that the employee’s dismissal was unfair, in part because the Company’s choice of investigator created the perception of bias, if not actual bias.

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/

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
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