I came across a great little paper by Harmers Workplace Lawyers on workplace investigations so I wanted to pull out some of the interesting things I found from that paper with some of my own thoughts.
It is important to realise that despite the employer having to make a decision about how to act, once the fact-finding has concluded, a workplace investigation is not a trial, nor is it a court case where the employer acts as the plaintiff. - Harmers Workplace Lawyers
When to investigate and when not to
Its important to identify when items should be investigated formally and when a more informal, hands on management approach would be more appropriate. For example, is the matter trivial, interpersonal, relating to a procedure or concerning maters not workplace related?
Let's have a look at some potential alternatives to resolve those situations.
Trivial matters - Employers are not obliged to investigate a trivial/frivolous matter. A common sense prima facie test needs to be applied (and make sure your policy allows for such!). For instance let's take an example of someone making a complaint about receiving what is a lawful direction from their manager, even though they may disagree. An informal discussion around the clarification of roles and responsibilities could solve this matter.
Interpersonal matters - Is this a suspected case of workplace bullying, or just two individuals in disagreement? It may be that a simple grievance or mediation process would be more appropriate.
Relating to a procedure - Perhaps an employee has ideas for improvement but the process by which to communicate those is unclear. Alternatively, they could be complaining about a procedure already in place they don't wish to perform. A more appropriate response could be treating this as an operational matter (or potentially a performance matter). However in some cases, for instance if the procedure related to safety, then a formal investigation may become warranted.
Not workplace related - Two employees may have a dispute over an incident that occurred outside of and disconnected to work. It's important to remember that while an employer's role is not to investigate these matters, it does have a role in ensuring the appropriate conduct of its employees while at work. The focus here should be on the behaviors demonstrated while at the workplace and representing the company. A mediation process may be a good first step in resolving this.
When a formal investigation is warranted
When a formal investigation is warranted here are some points to consider.
Harmers' outlines the following items.
1. Plan Carefully
2. Act Quickly
3. Observe proper process and the rules of natural justice
4. Interview witnesses
5. Maintain confidentiality
6. Be aware of what constitutes evidence
7. Keep proper records
8. Preserve evidence
I'd like to also draw out a few elements.
1. Clearly and specifically define the scope of the investigation. A poorly defined scope can lead to investigations loosing focus, going off track, taking an unnecessarily amount of time and resources or involving irrelevant parties.
2. A technical expert necessarily a expert investigator and visa-versa. Investigations are a specific skill.
It is sometimes tempting to call in an “expert” to carry out an investigation—for example, a forensic computer expert to deal with allegations of computer misuse. Care should be taken before appointing an expert in that way. It may well be appropriate when the only issue is a technical one—for example, there is no dispute as to the facts in general, but only whether the material in questions was copied from one computer to another. In many cases, however, the technical aspect will be but one factor in the investigation. The fact that a person has expertise in computer science does not mean that she or he will also be skilled at investigations generally. In those cases, it may be better to have a proper investigator carry out the investigation, with the expert appointed to assist the investigator on issues of fact. - Harmers Workplace Lawyers
3. A support person and an advocate are not the same thing. It's may be that a unionised organisation has an EBA which specifies a union representative to be present during an investigation. However unless an employer is bound by such terms, it's important they ensure any support persons stay within their relevant roles. i.e. They are there to witness and potentially assist but not speak or argue on behalf of the employee.
4. Ensure a workplace policy which is not overly prescriptive. Every case is different and while there are fundamental best practice elements discussed here, a cookie cutter approach can leave employers stuck in a corner. For example, a policy that requires an item be investigated and have subsequent action taken according to pre-determined time frame can be unrealistic and inappropriate to the individual circumstances of the case.
