When it’s not always black and white – the Art of Workplace Investigations

If you receive a complaint related to the workplace, how you successfully investigate the claims can be the difference to resolving them internally or the basis for how you defend the position you took before a court or tribunal.

To make it even more challenging, many complaints are also not black and white. For example, it is about behaviours that are *felt* and not seen, there are no witnesses or no concrete proof exists that the events ever took place.

It might initially all seem too hard and best left alone as a result of this…

…however, doing so can risk falling foul of not only human rights matters but also health and safety laws (e.g. mental health and safety) which oblige you to respond to a claim and it’s possible consequences.

So here’s 5 areas to consider when your investigation might not seem so black and white and you need help to get to an outcome.

1. Formal or informal?

First things first, we often get asked if the claim being investigated needs to be raised formally by an employee for it to be investigated?

The short answer is it depends on the substance of the allegations but, generally speaking, … no.

The reason we counsel not waiting for a ‘formal complaint’ is simple – if it turned out you were aware of a matter and took no action, you and the business could be liable for any significant consequences that arise from not addressing the issue.

A key in this situation will be approaching the potential complainant and creating the security and trust in what you will need to do moving forward (e.g. investigate).

And remember as you seek advice about this… establishing the right behaviours has never been achieved by turning a blind eye.

2. Planning

There are two key outcomes for any investigation to achieve.

  1. Did the alleged incident take place on the balance of probabilities?
  2. Why did it occur (e.g. was there a justifiable reason)?

Keeping these two questions firmly in mind, you’re now ready to plan your investigation and also consider issues that include:

  • Do you stand down the parties (on full pay) while investigating? This might be needed to protect one of the stakeholders ?
  • What do your policies say you should do?
  • Will you invite a support person to be present for discussions that raise talk of termination of employment (if in doubt, the answer should always be yes)?

3. Sleuthing starts with you

Adopt the concept of procedural fairness early when tackling the investigation – and always follow your own rules (e.g. policies) where they exist. Not doing so could expose you to claims of unfair treatment or bias.

Some investigation activities include:

  • Act timely – first confirm the allegations with the complainant and then move to investigate as soon as possible.
  • Be confidential – Keep the allegations on a ‘need to know basis’
  • Take notes – and remember to ask if there were any other witnesses to the incident.
  • Interview witnesses – who can assist (e.g. not someone who heard third hand of the matter).
  • Avoid assumptions and look for the facts that can be proved or are more likely than not to have happened.
  • Use a formal invitation to the Complainant and Respondent to attend a meeting and summarise the allegations in this letter. This can be especially helpful when the Complainant might not have worded their allegations correctly.

4. Act like an investigator

Unlike certain professions, you’re probably not called on to regularly prepare for the role of investigator (and why HR usually get the job in bigger organisations). Some preparations to consider include:

  • Try to recognise your bias in the collecting of information (a key reason why independent investigations are common).
  • Investigators practice attention to detail (keep notes, formalise records and look for other ways to confirm a ‘fact or even a ‘hunch’ e.g. computer, phone or time records for example).
  • Build professional rapport with the witnesses but don’t become too friendly.

Overall, the investigation should also NOT affect the investigators position within the Company. This builds on the concept of being seen as independent to the investigation.

5. It’s their word only

What happens when no witnesses are able to corroborate a version of events or there is a lack of ‘concrete facts’?

Apart from seeking advice, our golden rule is that the case will very much depend on the BALANCE OF PROBABILITIES as to who is lying and who is more credible.

Let these two criteria guide how you make your decision and the types of information and data you rely on to reach it – this is not a court of law HOWEVER; you still have an obligation to BOTH parties to reach a decision!

One more thing… The Outcome.

Whether you decide to terminate, issue a warning or dismiss the allegations, always do so in writing and explain the reasoning for the decision.

In the event that you find your decision being brought to the attention of a third party (e.g. the Fair Work Ombudsman), the ability to have your investigation and reasons quickly at hand will go a very long way to defending your process and your decision.

TIP: If you’re a small business, consider your investigation outcome alongside the Small Business Fair Dismissal Code. Here is a link to our article that discusses using this simple but effective Government guide.

Thanks for reading and if you still have questions after reading this article, reach out to one of the team at Quantum HR and we’ll happily provide some further thoughts or two to consider.