As discussed in our previous blog, 5 reasons to outsource your workplace investigation, even when an investigation is conducted well, the process has the potential to negatively impact the parties involved. Therefore, when an issue arises, it is important you carefully consider whether a formal workplace investigation is necessary.
When a formal workplace investigation may be required
Not all complaints will need to be addressed via a formal investigation. However, often the following circumstances will require a formal workplace investigation:
- Where you have received complaints/allegations of misconduct such as bullying, harassment or discrimination;
- Where there are concerns around workplace health and safety legislation; or
- Where there have been incidents involving behaviour such as theft, fraud, or misuse of confidential information.
When deciding whether to investigate any of the above matters, it is also important to keep in mind any broader legislative requirements if the matter could result in disciplinary action, any requirements pursuant to an applicable industrial instrument (such as a modern award) or your internal policies, and any mandatory reporting requirements in the case of possible criminal behaviour.
When a formal workplace investigation may not be required
Conversely, often a formal workplace investigation will not be required in the following circumstances:
- Where an employee makes general complaints or comments with respect to the culture of the company or its strategic direction;
- Where there are issues of poor performance (rather than misconduct); or
- Where there are interpersonal differences between colleagues which do not amount to bullying, harassment or discrimination on behalf of either party.
This is not to say the above issues are not important or are not to be addressed as a matter of priority. But rather, it is likely they can be addressed by other means such as performance management, mediation, or a broad review of the culture and efficiencies of the company.
Need help in identifying whether a formal investigation is necessary?
EI Legal can assist you in making an initial assessment regarding whether a formal workplace investigation is required. Further, if a formal investigation is not required, we can suggest other practical solutions for the matter/s at hand.
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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.