Workplace investigations: drafting allegations

Workplace investigations drafting allegations – One of the most important parts of workplace investigations is the drafting of the allegations to be put to the person subject of a complaint. There are a number of important considerations;

Timing: Personally I interview the complainant first, then witnesses and then gather any other available evidence before attempting to draft allegations. I know of others who like to interview the respondent (the person subject of the complaint) earlier, but I prefer to have as much information as possible.

Content: An important part of the allegation is to ensure two of the components of procedural fairness are adhered to;
1. The right to know – the allegation must contain enough information so that the respondent knows what has been alleged.
2. The right to be heard – the allegation must contain enough information to allow the respondent to be able to make a response, should they wish to do so.

Format: There are various ways to format the allegation. When I draft an allegation it should consist of (as much as is known)
* Time and date
* Location (if important)
* The parties (complainant and respondent)
* The policy that relates to the behaviour or complaint.
* How the behaviour was inconsistent with the policy

An example of an allegation;

It is alleged that at 10.30am on Monday 1 January 2018 in the general office area, you behaved in that was inconsistent with the ABCDE (Company) Workplace Bullying policy when you spoke to Mary Co-worker in an intimidating and demeaning manner, when you said in a loud voice “What sort of idiot are you, you need to be sacked”.

The details:
* Time and date – Try to be as specific as possible, but you can’t use terms such as “at around”. Often, especially in bullying complaints the reports are delayed and may be historic, you may have to use between dates.  This makes it harder for an accurate response but it may be all you have.
* Location – if it is relevant include it.
* The parties – The complainant must be advised that their identify will be revealed to the respondent as part of procedural fairness.
* The policy that relates to the behaviour or complaint – Be specific. In the letter of allegations that I draft (which I will write about in part two of this article) I often include parts of the policy that the person subject of the complaint will be asked to respond to.
*The behaviour that was inconsistent with the policy – THIS IS VERY IMPORTANT and is an area where I see a lots of mistakes being made. You must be very clear about the terms you use. For example in the allegation about I used the terms “intimidating and demeaning manner.”

Intimidating came from the words used and the statement/interview from the complainant when asked how she felt. In this case there was a power unbalance with the respondent being able sack or have the complainant sacked in addition it was said in a loud voice.
Demeaning also came from the words used and complainant statement and that they were said in the general office in front of other staff.

You should also ask the complainant how they felt, be careful here, if they say “I felt intimidated” don’t put your own views on it and use for example the word ‘”Threatened” as you may not have the evidence to back up the use of that word, consistency is the key

As a side note when I conduct an investigation, I do all the paperwork including letters to the parties and especially the allegations.

Other terms: With any term you use you must be specific about the “how” For example if John Citizen bullied Mark Co-worker, how did he do it, things to consider:
* What was said
* Any contextual issues
* relationships
* The tone of voice (angry, aggressive etc)
* The volume (Don’t use the work yelled for example unless you have evidence.  If someone mentions yelled or raised voice during an interview I will ask this question “If we are now talking at level 3 on a scale of 1 – 10, give a a number for how loud it was ?”
Where there any other actions, where were you, such as how close did they stand, were you seated the list can go on, again be specific.

Well written allegations will provide the respondent with enough detail to respond without giving away all of your evidence.

Order: Personally I prefer to list the allegations in date order ranging form the most recent. I may change this process if the more serious allegations are out of that order.  In that case I co-list then allegations in order of seriousness and date.

Quantity: More is not necessarily better, don’t draft 150 allegations if 10 will do.  Don’t draft allegations for the sake of it, have evidence and don’t duplicate. 

Proof: The investigation, the allegations and the respondent interview are designed to help the investigator to prove or disprove the complaint, things to consider;
* You shouldn’t make up you mind about guilt or innocence prior to hearing the respondents version of events.
* Allegations should have evidence to back them up, it is up to the investigator to weight up the evidence at the conclusion of the investigation.
* You may draft an allegations with limited or slim evidence but the weight of that evidence must be considered during the final report.
* In the case of Paulson v Industrial Relations Secretary (Department of Justice) the NSW Industrial Relations Commission found that out of the 42 allegations (Full judgment available on our download page) the majority were not proven to a satisfactory standard and those that were proven did not warrant dismissal.

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