Worklogic is often requested to conduct a preliminary enquiry by clients faced with a workplace complaint or concerns about workplace behaviour that are lacking critical information.
A preliminary enquiry occurs before a decision to proceed (or not) to full workplace investigation and can be very helpful in clarifying that decision, ultimately saving time and money and minimising risk to the client.
There are three main options available to employers that need to conduct preliminary enquiries to collect more information about workplace complaints:
- Preliminary assessment
- Preliminary investigation
- Workplace review
The terms ‘preliminary assessment’ or ‘preliminary investigation’ or ‘review‘ can mean very different things to different organisations, so we thought it might be useful to unpack some of the processes that are covered by these terms.
1. Preliminary investigation
A preliminary investigation can be carried out to determine whether there is a prima facie case that misconduct may be occurring.
Here are a couple of examples of when a preliminary investigation might be required:
- You may know that product is being stolen but may not know by whom or how. You may therefore need to conduct a preliminary investigation to establish adequate facts to formulate allegations – such as the extent of the theft and who could possibly be rsponsible.
- You may have received a complaint from someone leaving the organisation that causes you concern, but you have insufficient detail to follow up and you know they are not willing to provide more data or get involved in any further process.
For example, your leaver says that “Bullying and harassment and other inappropriate conduct is rife in the engineering team”. You may therefore need to conduct exploratory interviews within the engineering team to determine what appears to be occurring.
2. Preliminary Assessment
In both cases, you need to collect more information and you do not necessarily now what you will find or whether it will be of sufficient substance to warrant formal workplace investigation.
A preliminary assessment is used where the employer has received a complaint from a known and available source which is long on impact but short on facts. For example:
- The employer receives the following complaint – “I am feeling very stressed and no longer want to come to work due to the unreasonable behaviour of management”.
In this instance, it is not clear exactly what has occurred, it is unclear who the respondents are and how the matter would best be handled.
In this type of situation, employers could conduct a preliminary assessment by interviewing the complainant to determine the scale of the issue, the materiality of the complaint(s), the availability or otherwise of witnesses and/or corroborating information, the quality and specificity of the allegations and whether the allegations appear to represent a breach of a policy or standard (or not).
They may also want to know what resolution the complainant is seeking. A preliminary assessment enables the employer to be properly informed before deciding whether the complainant is capable of being investigated and/or whether a process such as mediation or coaching or training might better resolve the issue than an investigation.
Preliminary assessment is also sometimes used to describe a process where the employer simply wants statements from two parties in conflict to establish the nature of the dispute and their different perspectives.
This is not dissimilar to a typical pre-mediation process. In this case, it is also important to establish the basis on which the material will be collected and the possible uses that may be made of that information by the organisation going forward.
3. Workplace review
Another useful tool to gather information about what is going on is a confidential workplace review, initiated for example because there is ‘noise’ about issues in a team, higher turn-over or sick leave, or other signs that something is pulling the team off-track.
In this case, input is generally collected from everyone in the team on an unattributed basis and is off the record. The review is intended to shape team development interventions such as training, coaching or potentially redesign of structure, roles or processes.
Becuase this process collects data about employees’ perspections, the material collected is not intended for use in disciplinary style process such as formal investigations. As such it should not be referenced as ‘evidence’ in an investigation or used to formulate allegations, except with the specific consent of the interviewee. In this eventuality, the evidence should be taken on the record as a part of a clearly designated investigation process and be restricted to matters of fact rather than opinion or perception.
It is wise to ensure that in all workplace reviews, interviewees are notified of the exception to confidentiality. That is, if they provide detail of a crime or a matter that constitutes serious misconduct under the employer’s policy, the detail must be reported to the employer by any independent assessor and/or acted on by the employer, including to inform a formal investigation. In this case, their evidence should then be taken on the record.
Key things to remember when conducting preliminary enquiries
1. Notifying respondents
There is no requirement to notify any potential respondent that preliminary enquiries are being made until such time as the employer has taken the decision that there are allegations of substance and the full detail of those allegations.
There may be other reasons that the employer decides to put potential respondent on notice (for example because they consider the risk is such that they want to stand down any potential respondent) but as a general principle, notifying people of potential allegations that may not eventuate and which cannot be confirmed, is unhelpful.
Employers should notify respondents to any allegation at the point at which you can tell them specifically what they are accused of and when you have determined that you intend to launch a formal investigation.
2. Basis for collecting information
When you are collecting data from interviewees as part of a preliminary process, it is important to be clear about the basis on which the information is being collected.
Always spell out clearly what information is on the record and what is off the record, before starting your process. Then abide by the agreement! Make sure everyone understands the word ‘confidential‘ and what that means in practice.
If you want to rely on the material provided in any future investigation process, then you need to notify the people you interview of that fact, collect the information on the record and preferably provide an accurate record of the material collected, back to the person who provided it.
3. Be clear about what you are doing
Always clarify with any external consultant and your employees what process they are in and what you mean by the terms you are using.
4. Use a different investigator
If, as part of a preliminary process, you are seeking out data as to what misconduct may have occurred, it is wise to use a different person to investigate. This avoids the investigator being seen to have been involved in ‘making a case’ against the respondent. This does not apply where the investigator is simply clarifying the allegations from a complaint that is already contained in scope.
Undertaking an effective process to gather the missing information needed to draft clear and consise allegations will provide the solid foundation needed for a fair and effective investigation.
About Kairen Harris
Kairen Harris specialises in strategic workplace advice, dispute resolution and policy development. She understands how and when external HR can best augment internal function. Her depth of experience, wise counsel and practical problem-solving make Kairen highly sought-after.
Worklogic works with employers to resolve workplace complaints and create a positive culture at work. Please contact us for an obligation-free, confidential discussion on issues at your workplace.
