From bullying and harassment claims to serious misconduct, workplace investigations are an unfortunate reality of running a business and employing people.

In a recent webinar, Kyle Scott and Sam Cahill, senior associates at Australian Business Lawyers & Advisors (ABLA), gave their top tips for making a workplace investigation run smoothly.

1. Decide: Is this worth an investigation

The first trap businesses can fall into is to “investigate everything or investigate nothing”, the lawyers explained. Finding a balance is key.

“There’s no universal obligation under Australian law that tells us in clear terms when we need to investigate and when we don’t,” Mr Scott says.

“Instead, we have this patchwork of workplace laws that indirectly require us to do certain things.”

Areas that investigations are relevant include unfair dismissal, workplace health and safety, workers’ compensation, bullying and harassment.

A good rule of thumb is to make sure the response is proportionate to the seriousness of the complaint. For example, if an employee comes to their line manager complaining about a colleague not listening to their point of view, then a simple conversation/mediation might suffice. On the other hand, an investigation is likely warranted if there’s an allegation of bullying, sexual harassment, or misconduct.

Another issue that often rears its head here is what the lawyers call the “reluctant complainant”, where an employee raises an issue but doesn’t want to pursue it further. And Mr Scott says that while businesses often think they should do nothing in this situation, he believes that if there’s a potential issue and an employer doesn’t address it, then they could be in breach of workplace safety obligations.

2. Assign the right investigator

There are two qualities every investigator needs: competence and impartiality.

“They must be able to investigate claims thoroughly and effectively,” Mr Scott explains.

“They also need to be impartial – they cannot have been involved in the incident. They must be someone who’s going to look at this without any bias and or even the perception of bias.”

He adds that a nice-to-have is subject matter capability, which is more important for specific types of cases. For example, an investigation into financial fraud might require finance knowledge, or an IT systems breach might require, IT knowledge.

Another consideration here is optics, such as whether the investigator and the person being investigated are roughly the same seniority.

3. Make sure it’s fair

Conducting the investigation with what’s called procedural fairness is of the utmost importance – and will put a business in good standing if an employee brings something like an unfair dismissal case later on.

“The idea of procedural fairness is that if an allegation has been made against someone, they should have a reasonable opportunity to understand the allegation and to respond,” Mr Cahill says.

“Often a classic mistake is that not enough information is provided to the respondent to allow them to understand what the allegations are.”

This means being careful to provide sufficient detail.

4. Get your report right

Jump forward in time, and it comes time for an investigation report. How you go about this is important.

“One of the mistakes that we see is a report doesn’t include enough detail. And when we say detail, we’re talking about the reasoning that led to the finding,” Mr Cahill explains.

Reports generally follow a structure that goes:

  1. Summary of the complaint
  2. Evidence gathered
  3. Findings/conclusion
  4. The reasons why you reached that conclusion

“People are generally intuitively good at addressing [the first three points]… often, the shortcoming is in articulating why you landed on that conclusion,” Mr Scott says.

To make it easier, use the My Business Workplace Incident and Investigation Report.

5. Have clear lines between investigation and decision

Finally, the lawyers suggest having a clear delineation between the investigation and any sanctions or disciplinary action.

And while it’s not essential, the lawyers recommend having an investigator different from the one who decides the resulting action.

“If there are shortcomings in the investigation, it won’t necessarily taint or invalidate the sanction or disciplinary action,” Mr Scott says.

“Also, there’s a real benefit in a decision-maker who hasn’t had to get down to that level of nitty gritty, looking at every little scrap of evidence, but coming in at the end of the process and saying… do I agree with those finding[s] … sanity checking the evidence.”

Follow these steps, and you’ll have peace of mind that you have conducted an investigation thoroughly and fairly.

How we help

My Business Workplace has policies and documents to assist you with a workplace investigation, including: