Conducting Investigations

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. 

Study shows little impact of age on managerial style

The Department of Management at Monash University and the Australian Institute of Management (QLD/NT) have released a study looking at a range of hypotheses on the correlation of age and managerial styles. What they found however, was that there were in fact very little differences between age groups.

Contrary to all expectations, our study shows that the opposite applies. Australian leaders, be they young or older and more experienced, record similar levels of leadership and have a similar impact on employee morale and performance. That is, while older managers do not add significantly more to the organization as measured by specific employee outcomes (employee well-being and psychological capital (PsyCap)), nor do they compromise these outcomes. Nonetheless, there are subtle indicators that older managers do contribute different skills to the organization.

Other interesting findings were that there was no statistically significant difference between the amount of transformational and transactional managers in age groups or the emotional intelligence between age groups.

Another hypothesis the research looked at was whether older managers possessed higher crystalized intelligence with younger managers possessing higher fluid intelligence. According to the paper:

• Crystalized intelligence refers to an individual's mental abilities learned through applying skills to certain situations. Generally, something that increases during an individual's life.
• Fluid intelligence on the other hand is refers to an inherited basic reasoning ability in solving novel or unusual problems which tends to decrease with time.  

The research showed no significant differences in age groups in regards to crystalized intelligence for managers over 31. The only difference being managers under 31 tended to show less. There was however a decline in fluid intelligence through age groups. The authors importantly note however that the differences in both of these findings are still statistically insignificant.

Either way it doesn't really matter because the research also showed there was no statistically significant association between fluid/crystalized intelligence and actual managerial competencies i.e managerial effectiveness.

So over all it's pretty safe to say 'statistically insignificant' is the word of the day with this paper. The authors find this surprising and tend to relate this to their sample size of about 55 managers (give or take a few as not all managers completed all parts of the survey). Sample size aside they also suggest the findings could be indicative of Australian business culture but regardless, state further research is needed to either support or reject the findings of the paper.

Bully screening?

HC Magazine recently posted about a new trial screening scheme for employers called BullyCheck. Basically young applicants aged between 17-22 consent to a character reference check from their current or former high school.

It would be great if this helps solve the ongoing issue of high school bullying but it could have interesting ramifications if it becomes mainstream practice. The article mentions "If a student voluntarily raises their bullying history and demonstrates remorse and a high level of community service then their application for a job may be considered on its merits" However I find it hard to see how a confessed bully would pass a typical comapany's culture fit test, remorseful or not..

Update:

Some comments are pouring in on the article and so far they're all negative. I've posted some below:


Bree Vreedenburgh

No, no, no. This is an awful idea. You marginalise these kids for their behaviour, without giving them (a) opportunity to demonstrate they have changed and (b) assistance to overcome their bullying...??? What if the kid is a bully because his dad is an idiot? Shouldn't that kid be educated and nurtured instead of marginalised?? Do you really think bullies are going to stop bullying if you refuse them the advantage of stepping into a workplace where they are required to behave like an adult?
Also, why would jobseekers not be told why their application was refused?? Doesn't it defeat the purpose of the exercise - being to make bullies understand that their actions have consequences - if you don't tell them that their bullying led to them being excluded from consideration for a particular job???
I am thoroughly confused by this scheme. 

Deborah

And what happens to these jobseekers if they get refused a job? They go on the dole? That's NOT an acceptable solution. Bullying should be addressed at the coalface - not x number of years later when applying for a position.

Dean Turner

A truly terrifying move!


Natural justice takes a back seat, conspiracy and deception now stand tall front and centre. Having children at school I am aware of this issue, it is now being highlighted ad nauseum to everyone. The issue is this, do school properly investigate an allegation, I know for a fact that 2 or more years ago these issues were being swept under the rug. How does the accused defend themselves? Where are the processes? Under 18 and you criminal record is sealed, yet for this we will happily tell any employer who comes along.

It may be 2011, but it feels much more like "1984"!

Reference checks are an important part of the recruitment process and for many young professionals entering the workforce, a reference from high school might be all they have. Treating this like a Criminal Check is probably the wrong way to go however especially if they can demonstrate solid character references from employment post high school. I guess we will just have to see how the trial plays out and what the results are.