Investigations by independent, external workplace investigators are increasingly common in Australian workplaces. The need for an external investigation particularly arises in circumstances where a complaint is complex, multi-faceted, sensitive, messy or “political”. For this reason, external investigations can tend to take longer than initially envisaged. The inherent risk associated with the behaviour that instigated the investigation, and the high-stakes attached to the outcome, also means that external investigations are of particular interest to senior stakeholders. All of this creates challenges for HR in terms of managing the expectations of the participants in the investigation, those “around” the investigation and senior management.
Having recently moved from being an internal HR ‘instructor’ to conducting external investigations, Worklogic Consultant Sarah Fowler shares her practical tips for HR on managing expectations during the investigation process:
1. Communicate regularly and often with the external investigator
An external investigation runs best when an internal instructor works closely with an external investigator.
It is tempting to think that the investigation has been outsourced and therefore is not on your to-do list – but it will serve you well to remain actively involved in the process. As the instructor, you are driving the investigation and so anything you can do to facilitate the process will ultimately make it run more smoothly and efficiently.
Keeping in regular contact with the external investigator will also ensure you are kept up-to-date on the progress of the investigation and therefore well-placed when senior management unexpectedly comes knocking on your door for an update!
2. Ensure support for the participants during the investigation
Investigations are rare and unusual events for employees. Participants in any investigation – whether it be the person making the complaint, witnesses or the person against whom the complaint is made – may be tentative, nervous and unsure of the process.
It is important that all participants are supported by the organisation throughout the investigation. A recent case in Queensland has clarified that employers must take care to provide support to both the complainant and the respondent from the time a complaint is made and while the investigation is underway (Hayes v State of Queensland [2016] QCA 191).
Some ways to provide support can include ensuring the participants understand the process, ensuring they have access to an Employee Assistance Program (EAP) or some other form of emotional support and keeping them informed of the progress of the investigation.
The last point is particularly important if the investigation is a lengthy one; it can sometimes be many weeks from when a participant is interviewed to the completion of the investigation. Keeping all participants informed will help reduce some of the anxiety associated with the investigation – and of course, it is critical to ensure that all participants are told of the outcome of the investigation – to the extent that is appropriate.
3. Remain impartial and at arms-length
In many cases, you may ultimately be the person making the decision or recommendations about actions resulting from the investigation. Keeping this in mind, you should ensure that you remain as impartial as possible throughout the investigation and keep participants at arm’s length.
Avoid being the point of contact for participants for anything other than questions about process – this is why ensuring support through an EAP or another support contact is so important. It can be a real challenge to to remain impartial if you have had a complainant crying on your shoulder. It can also be equally challenging where there are internal stakeholders who want to pre-empt or pre-determine the outcome.
4. Most importantly, trust in the process
Sometimes an external investigation can seem to be taking a very long time. You may have senior stakeholders hungry for a solution; the respondent may have been suspended for some weeks and other employees are starting to question their absence; the complainant may be calling you daily for updates.
The best thing you can do in these circumstances is to understand the process, trust it, and communicate both your understanding and trust to your internal stakeholders. Having a clear grasp of the steps in the process and the principles of procedural fairness will help you greatly to explain any perceived delays during the process and manage expectations.
The external investigator should be helping you understand the process. If we are not – please just ask.
From a HR perspective, the investigation is really only the beginning. The really hard part is what can then come next. For advice on navigating the post-investigation landscape, see Lisa Klug’s post on “Managing the aftermath of a workplace investigation”.
About Sarah Fowler
Sarah Fowler joined Worklogic in September, 2106, following many years working for universities, most recently as Director, Workplace Relations at Monash University. Her expertise spans workplace relations including employee grievances and workplace disputes, workplace policy, staff equity, ethical conduct (including bullying, discrimination and harassment), academic performance and performance development.
She understands well the challenges of large, complex public sector organisations and how to navigate through the complexities. She is renowned for finding the most simple and effective solution for complex and multi-faceted problems.
Worklogic offers a range of services aimed at building a positive workplace culture and reducing conflict. For advice on managing a complaint about inappropriate behaviour at your work, please email Sarah via email or give her a call on (03) 9981 6578.
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