Most people understand that an investigation into a workplace complaint requires careful planning and execution. As well, it is generally understood that this means conducting the process in a manner that is fair and reasonable – but what does that really mean in practice?
Here is the “Baker’s dozen” golden rules of investigation
1. Have a plan – Before you begin, make sure you are clear about what the investigation process will involve. This means identifying the steps required, who will conduct the investigation, and critically, identifying what policy and procedure is being followed in conducting the investigation.
2. Clarify your scope and purpose – Be clear about what is in scope and what is out of scope, and why. Consider whether, if proven, an allegation would result in formal disciplinary action. If not, perhaps an investigation is not the right process to use. Mediation or conflict coaching may be more suitable.
3. Ensure the person running the investigation is free from actual or perceived bias – for internal HR professionals, this can be challenging, and it may be worth considering outsourcing the investigation if there are pre-existing relationships or a perception that an internal investigator would be biased.
4. Get clear, detailed and specific allegations from the complainant. This means that the allegations are fact-based and are free from emotional language and impact statements. Most importantly, the allegations should be sufficiently specific and detailed that when put to the respondent, that person is able to understand exactly what the allegation is, and the evidence that is being relied on. Do not underestimate how tricky and time-consuming developing allegations can be.
5. Don’t dismiss an allegation because you think it might not be possible to investigate. This is particularly relevant in situations where there are no witnesses, or a witness has left the organisation. If an allegation is serious but is not investigated simply because there were no witnesses, the risk to the organisation and its people is significant.
6. Communicate consistently with the parties about the process, rights, responsibilities and timeframes, and set unambiguous expectations. For all parties, communicate their rights and responsibilities, such as the right to a support person, and their obligations around confidentiality. With the complainant, it is critical that they understand that although they have made a complaint, the investigation is not theirs to direct. With the respondent, it is critical that they are afforded procedural fairness, including ensuring they understand exactly what the allegation is, they have the time and opportunity consider and respond to the allegation, and they understand the potential consequences of a proven allegation.
7. Gather evidence that is relevant, in a consistent manner. When conducting interviews, think about how and where interviews will be conducted, and as far as possible, use private, neutral territory. Think about the other sources of relevant evidence such as emails or CCTV footage. When identifying potential witnesses, limit your scope to only those people who may have evidence of probative value – that is, those who directly observed the conduct that is the substance of the allegation.
8. Ensure the witness is fit to be interviewed, and if not, make reasonable adjustments to accommodate any medical needs they have, such as regular breaks.
9. When analysing the evidence, make sure you only consider evidence that is directly relevant to the allegation at hand – making judgements on irrelevant information, such as how the witness behaves towards the investigator, or on past behaviour, is very risky, and can lead to unsafe findings.
10. Before making findings, identify any contradictory evidence that you intend to rely on in making a finding, put it to the relevant witness, and give them the opportunity to respond.
11. Make sure your analysis of the evidence, and the findings you make, are on the balance of probability – that is, having regard to all the facts, is it more likely or not, that an allegation is proven? Is your analysis cogent and logical? If not, you will need to gather more evidence.
12. Balance timeliness versus diligence – a fair investigation is one which is completed in a timely manner, but diligence in gathering all the relevant evidence should not be sacrificed for the sake of expedience.
13. When reporting on findings, plan for how you will structure your report and communicate your findings. Think about who will receive the report. Who will determine what penalties will apply in the event of a proven allegation? How will the parties be informed and what information will they receive?
Even relatively simple allegations can result in complex, risky, time and resource intensive investigations. If you would like to learn more about how to conduct a workplace investigation, consider attending our Workplace Investigations training.
About Angela Seach
Angela Seach is an experienced workplace coach, and brings substantial experience across the full spectrum of strategic and operational people and culture management functions in public and private sector organisations to Worklogic.
Prior to joining Worklogic, Angela was an accomplished senior organisational development manager with a significant track record in successfully driving outcomes in large, complex and geographically dispersed organisations, including the Country Fire Authority, Ansett Australia and Air New Zealand Engineering Services.
