Whether prompted by an employee, or something observed by the employer, there may come a time when an employer will need to conduct an investigation. Some examples of the need for an investigation include serious misconduct, a minor issue of underperformance, or an allegation of bullying and harassment. Importantly, based on any allegation against an employee it is vital that as much evidence is gathered including data, witnesses, or any documents that may be used.
Besides the formal investigation process that will need to be followed by the employer, careful attention will need to be paid to ensure there is a balance in any investigation. Balance between properly advising the employee of an allegation against them and causing unnecessary stress or anxiety on an employee where there may not be an issue to address.
Underpinning the entire investigation process is natural justice and good faith. Jumping to conclusions and making baseless allegations are perfect examples of what not to do, and are examples of conduct which can cause problems for employers.
An employee has the right to know they are being investigated, however, it is the timing of this practice that employers can often get wrong. As a general rule, the employee should be told there is an investigation when the employer is confident there is an issue to address, and that there is sufficient evidence to prove there is an issue.
In telling the employee at the right time, they are being provided with an opportunity to respond. Therefore, providing them with evidence against them will ensure the evidence is valid and can be used should there be a need to dismiss the employee at a later stage. Making a conclusion after an employee has had the opportunity to respond should take place after careful consideration of what the employee has said and the explanation they have given.
The lengthy and complex process of investigations is the reason some employers elect to outsource the investigation. There is no right or wrong answer as to whether an independent investigator should be used, but generally the person doing the information gathering should be neutral and not impacted by the decision. For example, where an employer has been accused of bullying it will likely be an independent party that makes the decision based on evidence from an investigation.
The concept of bias is the biggest concern in these types of investigations. Whether to use an independent investigator or not will be a matter of choice for the employer, however, some workplaces have policies that state a neutral party will conduct investigations of a disciplinary nature.
Investigations into bullying or harassment are often complex and lengthy, and quite often they are sensitive in nature. Using an external party can ensure it has been done thoroughly, WorkSafe can provide investigators to those employers wishing to be completely thorough in this investigation.
Important factors in this type of investigation centre around the qualification of the investigator. Often health and safety investigations will look at safety systems, documentation and processes which will require the person looking into an incident or an issue to have the appropriate technical ability to complete this type of task.
There are a number of important steps for employers to consider before, during and after any investigation.
Checking the employment agreement for any conditions on the investigation is the first step, as well as identifying the party that will conduct the investigation, and drafting any terms of reference.
The terms of reference should clearly outline all the details of the investigation and should ultimately be a plan for the entire process. The terms should clearly identify the matters being investigated, as well as any limits to the investigation; outline who is conducting the investigation; identify witnesses; give timeframes; make it clear that a support person for any party is entirely appropriate; and who the contact person is for the investigation. This is not a complete list, but is meant as a guide of the type of concerns to be addressed in the terms of reference.
These are the individuals who have firsthand knowledge of the act or behaviour being investigated. The employee being investigated is entitled to know the list of witnesses to allow a full response, and the removal of any perceived bias. Given their identity is likely to be disclosed, witnesses should be told any information they share is likely to be confidential to the investigation but shared with the person under investigation. In some extremely rare circumstances it can be appropriate to have anonymous witnesses, however this should be avoided where possible.
The witness being interviewed should be fully across what is being investigated as well as the investigation process. The witness should also know where the information could end up and the potential outcomes. Asking appropriate questions and allowing the witness to clarify where necessary are essential elements of a fair investigation.
This is a crucial step, and can often be the hurdle to trip employers. All the evidence that has been gathered should be presented to the employee and their response encouraged. Recording the interview, with permission, or take notes as an alternative ensuring that any notes are confirmed with the employee that has been interviewed with any comments or clarification received.
The report should be facts only, and should be the end result of a comprehensive and balanced investigation. Each of the initial concerns should be addressed with sound reasoning provided, free from moral or emotional judgements. The report should be provided to those outlined to receive a copy in the terms of reference, and it should not refer to any decision or recommendation on the disciplinary action to take.
Investigations are a difficult process and often come at a time when the employment relationship has deteriorated between employees or between an employer and an employee. For advice and support in any investigation process contact Employsure on 0800 675 600.