Have you ever had that niggly feeling that something just is not right in a particular area of the organisation? Perhaps staff are alerting you to the fact that someone is not behaving as they should, but are not prepared to make a formal complaint. What can you do? We would suggest you think about doing a workplace review.
What is the difference between a Workplace Investigation and a Workplace Review?
There are key differences between and investigation and a review. They are as follows:
An Investigation generally occurs in response to a complaint raised by an employee or employees. The key features of an investigation are as follows.
- The complaint must be specific enough for the respondent to respond to.
- To maintain impartiality, the investigator cannot assist the complainant to draft the complaint. However, the investigator may need to clarify some details of the complaint with the complainant.
- Procedural fairness is afforded to everyone in the investigation. This includes the respondent knowing sufficient detail of the allegations.
- In the written report, the investigator will make findings of fact on the balance of probabilities. The employer can then use these findings as the basis for its decision-making.
A Workplace Review is usually a more proactive process, initiated by the employer. The employer can initiate a workplace review without a complaint being made, or where the employee is not comfortable being named as a complainant. The key features of a workplace review are:
- There is no need for a specific complaint from a named complainant.
- The consultant speaks to a larger group of employees.
- The consultant usually does not ask the employees about a particular issue or “problem”. Instead, a workplace review provides an opportunity, in private with the consultant, for each employee to raise any concerns they have about their workplace.
- There are no “allegations” or complaints put to particular employees. Procedural fairness is not applied.
- Because any allegations or complaints that arise during the workplace review are not put to the accused employees for response, the consultant does not make findings of fact.
In the written report, the consultant may summarise the concerns or issues that the employees have raised. The consultant may also make some general comments on trends in the issues being raised by employees. The notes of the consultant’s discussions with employees will be provided to the employer. However the consultant will not draw conclusions about what has or hasn’t happened in the workplace.
- The employer can use the notes of discussion and any comments by the consultant to assist the employer in its decision-making.
Choosing between an Investigation and Workplace Review
In our experience, our clients will usually ask us to undertake an investigation when:
- There is a complaint made by an employee or a departing employee;
- The complaint is of a serious nature, and the client’s lawyers have advised them that they are legally obliged take formal action (for example under the OH&S or equal opportunity legislation);
- The complainant is not insisting on remaining anonymous;
- The employer believes that, if the allegations are proven, the employer will want to take some sort of disciplinary action against the accused employee; and/or
- The employer wants an impartial and independent person to make findings of fact in a written report, on which the employer can base its decision-making.
Our clients are more likely to initiate a Workplace Review when:
- There is no complaint;
- The complainant does not wish to be named for fear of reprisals by the accused employee;
- The employer has a sense that “something is wrong” in a particular department, but due to the location of the department (e.g. away from Head Office) or the seniority of the people involved, the employer doubts that any employee will make a complaint;
- The employer does not need the consultant to draw conclusions about what has happened in the workplace; and/or
- The employer only expects to take positive generalised action (such as training), and not responsive individualised action (such as giving a particular employee a written warning), after the workplace review.
Some employers undertake a workplace review first, in order to come to a better understanding of the morale and any underlying issues in a department, and then initiate an investigation. Before the workplace investigation can commence, the employer talks to individual employees and invites them to make a formal complaint about the issues that concern them.
Alternatively, an employer might choose to run a more general workplace review after an investigation, where this could repair some difficult relationships and improve teamwork and morale.
I would not recommend that a workplace review is carried out at the same time as an investigation. The processes are very different (as outlined above). To run both processes at the same time could lead to significant confusion in the workplace, as employees inevitably talk to each other about the presence of an external consultant in the workplace. For example, if a specific complaint has been made, and the consultant is talking to a larger group of employees which includes people who are not named in the complaint, the respondent may feel that they are being “targeted” and that the employer is gathering evidence against them. The employees may become confused about the impartiality of the consultant, and this may impact on their cooperation in the process.