Workplace Investigations and why they are needed
What is a workplace investigation?
A workplace investigation is a line of enquiry that aims to impartially assess issues or allegations that have occurred in the workplace or have a workplace connection. Typically, the aim of the investigation is to do the following:
Did the allegations occur?
Are there disciplinary and performance issues?
Has bullying and harassment occurred?
Are there workplace culture issues?
Are there OHS issues and concerns?
Why are they necessary?
In order to maintain employee confidence in a workplace culture, and to identify any shortcomings in employee conduct which is likely to undermine the workplace culture, then such investigations are necessary. In many instances, the requirement to undertake an investigation can be found in an enterprise agreement or a workplace policy.
Typically, the following will occur in an investigation:
Do the issues relate to work or have a workplace connection?
Do the allegations have merit or are they vexatious?
Do they raise concerns of a breach of contract, policies, code of conduct or occupational health and safety obligations?
Do they raise issues of bullying, harassment, abuse, violence, dishonesty, theft or refusing to comply with an employer’s direction?
What procedure must be followed?
The investigator must establish that clear and precise allegations exist which are capable of investigation, and ensure the allegations are not fanciful or “engineered” claims.
They must also investigate the relevant issues and be impartial. The steps can be listed as follows:
Follow procedure, particularly any procedures set out in relevant workplace policies or any procedures set out in an enterprise agreement.
Maintain confidentiality.
Interview witnesses.
Allow all witnesses the option of a support person.
Allow breaks and emotional support facilities.
Provide evidence.
Maintain open and transparent communication.
The determination must be based on the Briginshaw test or on the balance of probabilities.
In other words, how likely is it that the allegation/s occurred?
What format should the findings take?
The findings should be in the form of a report. The report should specify:
Instructions.
Background.
Allegations.
Methodology – who was interviewed, when and where.
There needs to be commentary on the witnesses.
The recommendations must be clear and unambiguous.
It is also important that an executive summary be prepared and provided to the respondent or the person who the allegations concern.
Final thoughts for us?
All investigations must be thorough and impartial. In most cases involving serious allegations, it will important that any written report regarding the outcome of the investigation attracts legal professional privilege. Any investigation can in most cases be conducted by a lawyer, even if the law engages a third party to conduct the investigation. The big advantage of an investigation report which attracts legal professional privilege is it cannot be made available to other parties without a specific order of a court.
For further information please contact:
Jim Babalis
Special Counsel
T 03 5225 5205
E jbabalis@ha.legal
Jim Rutherford
Principal Lawyer
T 03 5226 8579
E: jrutherford@ha.legal
