Workplace investigations are never pleasant, however, there are times when they are absolutely necessary. The three most common reasons for workplace investigations are:
- Potential employee misconduct that may result in disciplinary action or even dismissal.
- Complaints by one employee against another pertaining to allegations of bullying, sexual harassment, discrimination or micromanagement.
- Allegations that an employee has been subjected to adverse action in connection to a right as defined by the Fair Work Act 2009
A workplace investigation has only two purposes. These are to establish the facts of the matter and to identify any mitigating circumstances that need to be taken into account.
Tips on managing a workplace investigation
- Be fully aware of your legal obligations. Dismissing an employee prior to conducting a full investigation may be perceived as a denial of natural justice. Fair Work Australia may find such actions unreasonable and the employee could be reinstated, or compensation awarded.
- Be clear about what the investigator’s role is. That is to establish what the facts are and to prepare a comprehensive report - not to determine guilt or apportion
- Be clear about the procedures for collecting evidence. Look to collect facts and speak to witnesses on a confidential basis. Avoid leading questions and what is known as fishing expeditions. Examine all hard evidence available such as letters, emails and video evidence if available.
- Know how to interview witnesses and record and prepare their statements effectively. Make sure that the witness tells the whole story and record their exact wording. Be sure to inform witnesses that they may have to attest to the truth of their story at a later date. If you deem a witness to be unreliable and decide not to interview them or record their statement make sure that you record your reasons for this.
- Know how to complete an investigation report. It is good practice to present the information in chronological order, with any supporting evidence attached to the report as annexures. Any witness statements should be signed on all pages. Phone interviews should be noted as such along with how the interviewee was identified over the phone.
- Know what action to take when the investigation is complete. Once the report has been completed, the employee must be given sufficient notice to defend themselves against any allegations. They are entitled to have a witness present at any subsequent interviews. Once all interviews have been conducted it will be necessary to inform the employee of the outcome of the investigation.
It is important to remember that the workplace investigation has the sole aim of establishing the real facts about a particular matter and it is, therefore, critical that sides are not taken while the investigation is in process.
If you are in any doubt at all on how to proceed with a workplace investigation, a HR consultant or lawyer can help. If you need advice or guidance on what to do, get in touch with our experienced team at Preston HR.