Australian workplaces involve a complex system of policies and procedures to keep them running fairly. Aussie business owners and employers have a positive duty on businesses to eliminate unlawful behaviour relating to unlawful conduct (or sexual conduct) in the workplace. In such situations, Aussie employers and HR practitioners can ensure workplace complaints and investigations are handled appropriately and avoid potential reputational damage. Workplace investigations are a key aspect of maintaining safety and fairness in your company.
In this best practice guide for employers, we explain what workplace investigations are, planning for a workplace investigation, conducting a workplace investigation, and ways Peninsula can help you. Please note that the information below is general and does not constitute as advice. If you need help with workplace investigations, consult an employment relations professional.
Workplace investigation
A workplace investigation is an internal review of specific incidents, allegations, and concerns within an organisation. Workplace investigations are about establishing what happened in an impartial manner and ultimately leads to resolution to whatever has happened.
Usually, a HR manager or supervisor will conduct the workplace investigation. There is an established, company-wide process that is written in the employee handbook and communicated to all employees via an intranet.
Why are workplace investigations important?
Workplace investigations are tricky and intense, but they are also important. They help manage and resolve sensitive workplace issues such as misconduct, grievances, harassment, and whistleblowing. Workplace investigations help reduce the potential risk of legal claims under employment laws.
Things to Remember Before Conducting a Workplace Investigation
- Before starting a workplace investigation, it is essential to review and adhere to organisational policies, industrial agreements and employment contracts.
- Check whether there are specific procedures to be followed in workplace investigations, grievance management, performance management, discrimination, and harassment.
- If you do not have policies applicable to misconduct or investigations, use this as an opportunity to develop them.
- The choice between formal and informal investigation procedures will depend on the investigation, its complexity, the allegation, and the number of employees involved.
- The person in charge of the investigation must have the appropriate skills and experience to do so.
- Depending on the allegations and circumstances, you will have to decide whether to use an internal investigator or external investigator.
- It is generally recommended that the employee know about the allegations before the investigation. You also need to give them time to prepare and gather supporting evidence.
- You should also remember that the investigator needs to have certain characteristics. For example, would the complainant or witnesses be more comfortable talking to someone of their gender or cultural background? Is there a need for the investigation to be legally privileged?
Do you always need a workplace investigation?
Investigations are usually an escalation of workplace issue that harm employee morale and cause distress to everyone. They are labour and time intensive for HR and management. Before you even begin a workplace investigation, it is crucial to step back and reassess if a formal or informal investigation is needed or there are alternative ways to solve the matter.
Some incidents that are straightforward and can be handled with other policies or procedures do not necessarily need a workplace investigation. However, if there are serious allegations, multiple employees, and the potential consequences are significant then a formal investigation is required.
Workplace investigation process
The idea of a well conducted investigation is to gather and assess all the facts. For example, when an employee has a grievance or disciplinary matter, an investigation is crucial to the process of deciding whether to take them to a formal hearing.
The steps in a workplace investigation are as follows:
- The employee should know about the investigation in advance and receive time to prepare and gather evidence.
- Anyone who has relevant information or material to the matter being investigated should be interviewed.
- For witnesses, if the employee respondent mentions someone as a witness to a particular incident, or asks for a particular person to be interviewed, serious consideration should be given to interviewing them.
- External individuals should also be interviewed (ex-employees, customers etc) if they are witnesses to particular incidents.
- Offer the employee a support person where practicable, especially where the situation may cause stress to the employee.
- If your employee does not cooperate or comply, you can warn them that uncooperative behaviour can result in disciplinary action. You should also remind them about their obligations.
After the investigation
You have to follow the correct procedure during the investigation or the employee could go on to make a claim of unfair dismissal. The Fair Work Commission would expect you to show your investigation into a grievance or complaint was careful and fair before you decided to take formal disciplinary action.
You should subject your investigator’s report to a thorough review before accepting or disagreeing with the findings. A second opinion or legal advice should also be considered if you disagree with the investigator’s report. Before making any decision, you have a serious responsibility to consider all facts and findings.
Create fair workplaces with Peninsula
Conducting a proper investigation into workplace accidents can help you later if you receive a workers compensation claim. If you always keep good records, it will be easier for you to defend any claim. Peninsula can assist you in conducting workplace investigations or understand the formal disciplinary process.