Workplace Investigations

In Australia, employers have a common law and statutory duty to provide a safe work environment and protect employees from discrimination and harassment. As part of this duty, employers sometimes conduct workplace investigations into a range of different issues, from worker disputes to allegations of employee misconduct. This article looks at the processes and possible outcomes involved in workplace investigations.

What are workplace investigations?

Every workplace has employee disputes, and many have incidences of employee misconduct. Allegations of discrimination, harassment, bullying, and fraud can greatly disrupt workflow and damage morale. It is imperative for employers to conduct appropriate, procedurally fair workplace investigations into such incidents. When employers fail to investigate or conduct a biased or incomplete investigation, they fail in their duty of care. The workers remain at risk and the employer can incur financial liability, increased WorkCover claims and legal challenges.

A workplace investigation allows an employer to discover the facts, and ultimately hold individuals accountable to the appropriate standard. Many workplace investigations are conducted by internal officers, such as the HR representative. In larger corporations, or where there is a perceived conflict of interest, the employer sometimes engages an external team to run a workplace investigation.

A workplace investigation is intended to be an objective, independent, and structured process focused on making findings of fact about allegations. These types of workplace investigations are typical when there is an alleged breach of a policy, procedure, contractual term, or workplace law. For instance, an investigation into an allegation of sexual harassment or bullying of a co-worker, discrimination based on a protected attribute, or workplace safety incidents. The investigation determines whether these allegations are substantiated given the available information and evidence. Although there is no legal standard set for such an investigation, in most cases an investigator will be determining what is more likely to have happened, that is, on the balance of probabilities.

Internal workplace investigation process

Internal workplace investigations go through a number of stages before being determined.

Complaints

Most investigations begin with a complaint. Such complaints should ideally be in writing and signed by the complainant. However, some investigations are prompted by informal or anonymous complaints. An employer may consider that an anonymous complaint is sufficiently credible to launch an investigation, especially if the complaint relates to serious breaches of workplace standards.

An employer should acknowledge any identified complaint promptly and meet with the complainant to find out further details. The employer should offer the complainant the chance to have a support person present at this meeting. This first stage is when the employer must decide whether to proceed with a workplace investigation. This decision must be made carefully, because it may be scrutinised later if the employer chooses not to go ahead with the investigation and other incidents occur.

It may be appropriate for some issues, such as interpersonal conflicts, to be addressed through mediation between the affected employees. More serious allegations should be fully investigated in line with internal policy, procedure, and procedural fairness. Depending on the allegation, the respondent may be temporarily stood down at this stage of the investigation. At this point, if there are safety or criminal implications, the complaint should be reported to Safe Work, Fair Work, or the police.

Preparation and notification

When the employer decides to proceed with the workplace investigation, they will plan an approach and start documentation. The employer needs to document and justify their reasoning for these decisions as part of procedural fairness. This will involve identifying the scope of the investigation, the parties and order of notification, the relevant internal HR policies and procedures, the lead investigator, the method of interviewing and who will be present during the interviews. The employer should give the respondent a letter notifying them of the investigation and reminding them of confidentiality requirements.

Collect evidence

The bulk of the work in the investigation happens during this stage, while the employer reviews the complaint, conducts interviews and collects evidence (such as written communications, CCTV footage, and internal documents).

Communication

During this stage, the employer should notify the subject of the complaint. The letter should clearly and concisely set out the allegations and address the particulars of the matter. The employee must then be allowed to respond, in writing, to the allegations.

Make a determination

After the investigator has communicated with all the parties and collated all the evidence, they must decide whether the allegations have been substantiated. The investigator should document their reasoning, and share their findings with both the complainant and the subject of the investigation.

If disciplinary action is indicated, only the subject of the disciplinary actions should be notified of this decision. If the facts warrant summary dismissal, the employer should now commence and proceed carefully through the termination process. Depending on the length of employment and the size of the organisation, terminating an employee can raise the risk of unfair dismissal. Under the Fair Work Act, a dismissal is harsh, unjust, and unreasonable, if there was no valid reason for dismissal, or there was a valid reason but the employee was given no opportunity to respond to the allegation. When a workplace investigation has been conducted according to the workplace law and the principles of procedural fairness, this will greatly assist the employer when defending an unfair dismissal claim.

The investigator should prepare a thorough report at the conclusion of the investigation that outlines the process undertaken, the collated evidence, and the ultimate outcome. They might also provide post-workplace investigation recommendations, such as performance management strategies, changes to workplace culture, or leadership training.

Manage the outcome of the investigation

Clear communication is a key component of any workplace investigation. There may be significant changes or repercussions following an investigation, and companies have a duty of care to support workers through these times. In addition, the business must demonstrate that they have taken action to prevent similar incidents in the future. This is particularly true when the complainant may be subject to retaliation or unfair treatment from co-workers during or after the workplace investigation.

The employment law team at Go To Court Lawyers can help an employer understand the workplace investigation process, the potential risks for the business, and advise on obligations moving forward. Please contact the team on 1300 636 846 for any legal assistance.

Author

Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Go To Court Lawyers in 2020.
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