Workplace investigations are an important aspect of successfully dealing with employee complaints or in determining whether or not misconduct has occurred.
Once it has been decided that a matter will be investigated, it is important to determine the precise scope of a workplace investigation. Most investigations originate from an initial letter of complaint (or the like), but it is important that the initial complaint does not solely determine the investigation’s scope.
Some considerations when determining the scope of a workplace investigation
Most often, letters of complaint will not be expressed in a way which makes the allegations contained within it easy to investigate and often, important details and particulars will be missing. Further, it is important not to forget that it is the organisation that should determine the scope of any investigation, rather than the complainant, as it is the organisation that must ensure compliance with its policies and codes and provide its workers with a safe working environment.
Before determining the scope of the investigation, it is important to first think about the required outcome. For example:
- Is the investigator required to simply make a finding that a particular incident occurred on the balance of probabilities?
- If they make a finding that the incident occurred, are they required to then make a determination regarding whether this involved any breach of company policy?
- If a breach is made out, do they have to make a recommendation regarding what action should be taken (i.e. disciplinary action, training etc.)?
Once these questions have been answered, it will be much easier to define the scope of the investigation and to produce a final report which provides the organisation exactly what it requires to take any further action.
How the scope may shape an investigation
By way of example, an initial complaint has been received that an employee is being bullied by their manager and a decision is made to utilise an internal resource to investigate. The investigator must also make a determination regarding whether there was a breach of company policy. However, they are not required to make any recommendations.
The company has an anti-bullying and harassment policy in place which defines bullying as “a repetitive pattern of unreasonable behaviour that may pose a risk to health and safety”. The company also understands that a similar definition of bullying exists within the Fair Work Act 2009 (Cth).
As such, the scope of a workplace investigation provided to the internal investigator may be as follows:
To investigate whether employee X bullied employee Y within the definition of clause Z of the Company’s Anti-bullying and Harassment Policy. Specifically, whether, on the balance of probabilities, the alleged behaviours occurred, and if so, whether they were unreasonable in the circumstances and may pose a risk to employee X’s health and safety.
Please note, it is important not to ask an investigator to make any findings which they cannot make, i.e. require them to provide a medical opinion which they are not trained to give. However, in this case, it is likely that the investigator could make a determination regarding the possibility of the risk existing.
Finally, once the findings have been made and the report provided to the decision-makers, the decision-makers may elect to provide the report to a lawyer who can assist in determining whether the behaviours may constitute a breach of the Fair Work Act 2009 (Cth) and if required, provide advice regarding any disciplinary action which may be required.
Need help with an outsourced workplace investigation?
Many employers choose to outsource investigations to an external investigator to ensure the independence of the investigation and to spare their own employees from the time and stress of investigating their colleagues.
Please contact EI Legal if you require an independent third party to conduct your workplace investigation.
Other content that may interest you
About EI Legal
EI Legal is a specialist firm of employment lawyers. We advise businesses of all shapes and sizes as well as employees and HR professionals. Please contact us if you require any assistance or wish to discuss whether an investigation is right for you and how we can help.
The information provided in these blog articles is general in nature and is not intended to substitute for professional legal advice. If you are unsure about how this information applies to your specific situation we recommend you contact EI Legal for advice.