A workplace investigation process must be designed to ensure procedural fairness to all parties, particularly the person subject of the allegations.
The following is a summary of the essential elements of a workplace investigation process. The commentary is general only and may not account for the specifics of each situation.
If you are in doubt as to any of the steps, feel free to contact National Workplace Investigations where we will be happy to discuss the workplace investigation processes with you.
Receipt of complaint
This is usually the first step. The complainant in a matter needs to be able to adequately articulate what their complaint is – a process that is easier said than done.
It is important to be able to document, as far as practical, the essential issues from the complainant. It may not always be possible to identify a time, date and place of an alleged incident, and this is not essential in all circumstances, although it is preferred this information is obtained.
It is important for this step to be well documented and noted. This will usually be in the form of a formal statement. The information must be the account of the complainant, not that of the investigator.
Notification of allegations
Once a complaint has been received, a fundamental consideration is then whether to advise the person who is the subject of the allegations.
This can be a difficult decision to make. There are times when the person subject to the complaint may not be advised of the allegations, at least until sufficient evidence has been obtained.
The decision not to inform the person subject to the allegations needs to be risk-managed. If it is likely that the person will be informed by a colleague, it is more appropriate that the person be informed at the outset. This decision may also be affected by enterprise agreements, policies and procedures.
The notification letter does not need to articulate the specific complaint, as at such an initial stage this may not be known. Rather, it needs to inform the person clearly that there is a complaint, the general nature of the complaint and anticipated timeframes until the allegations can be clearly put to the person.
It is appropriate that the notification letter also articulates the investigation process, the confidentiality of the investigation and any organisational employee assistance program or service and how to contact them.
A nominated person to whom all communications about the investigation can be addressed should also be highlighted. At times, this may not be the allocated investigator.
Request for statements – adults
It is recommended that any identified witness in a workplace matter should be advised in writing that they are identified to be a witness in a workplace investigation. It is imperative that the letter informs them of their rights, an employee assistance program phone number and the ability to bring a support person.
The support person cannot be a person who is, or is likely to be, involved in the investigation themselves.
The request can identify the time, date and location for the interview, as well as the proposed duration. If it is not known, this is something that can be discussed with the witness.
An investigator should be conscious of the intended location of the interview, as you want to limit the exposure of the witness to other parties (including the person subject to the allegations) who may be able to identify that the witness is providing evidence in a workplace investigation.
Request for statements – children
If there is a requirement to obtain evidence from a child as a witness, it is important that the parents (or guardian) are aware of the request and are present.
Child interviewing is a skill, and subject to the requirements for the interview and topic area, consideration should be given to engaging a professional child interviewer.
You will only get one chance to do this right.
Allegation letter
Once sufficient evidence has been gathered, an allegation letter will be required to be written. There are various techniques to write an allegation letter.
The allegation letter should, as far as practical, provide a time, date and place the alleged behaviour is said to have occurred. If this is not possible, consider providing sufficient detail for the person subject to the allegation to be able to respond. It is preferable that the allegation letter also identifies what policy or procedure the behaviour of the person who is subject to the allegations may be in breach of should the allegation be found to have occurred.
The letter should also contain the methods in which the person subject to the complaint may respond, such as in writing or by participating in a recorded interview (or both), and a date by which to respond. The letter should identify any potential penalty that may flow if the allegations are proved. It is appropriate to include phone numbers for any organisational employee assistance programs or services.
Confidentiality should be stressed, and a person should be nominated to whom the person subject to the allegation can direct any concerns or queries. The allegation letter, where practical, should include copies of any relevant organisational policy document that the person is alleged to have breached.
Engaging third party firms – the basics
The decision to outsource a workplace investigation can be difficult. There are a myriad of law firms and investigation companies in this area.
Don’t be fooled. A person’s title does not default to mean they have an understanding of the basics required in such delicate matters. Be sure the organisation, and in particular the investigator they engage, is appropriately skilled to do the job. For example you should ensure that the investigator has specifically conducted investigations and has developed skills in obtaining complainant and witness statements and conducting interviews. This is a different skill to that used by organisations conducting client interviews in a different environment.
As a client, it is your right to request the details of any workplace investigator.
Be sure to obtain a detailed scope and costings (terms of reference) from the provider. The document should detail a brief background, a purpose of an investigation, the people to be interviewed, the timeframes and an estimated costing. Such an approach aids in limiting investigation scope creep and stops the bill shock. Any amendment to the agreed scope and costings should be in writing and account for which investigation tasks have been completed and the duration of each.
If you or a team member require assistance with a workplace Investigation matter please contact us.