It is far from uncommon that when allegations of misconduct are raised, an implicit pressure can exist for workplace relations practitioners to conduct a workplace investigation into those allegations in an expedited manner.  Relevant stakeholders are eager to be made aware of the relevant investigation findings, take necessary steps to address any findings of workplace misconduct, and return their focus to business as usual.

Notwithstanding this pressure, it is vital that workplace relations practitioners conduct, or procure the assistance of a specialist to conduct, a thorough investigation process that will withstand scrutiny and be found to be legally defensible.

This Insight shares some practical considerations that workplace relations practitioners ought to have regard to when conducting or overseeing their next workplace investigation.  Furthermore, employees subject to an investigation process should be cognisant of the matters below to ensure they are being afforded procedural fairness by their employer.

Gathering witness evidence

In dealing with witnesses, a workplace investigator (Investigator) ought to consider the following:

1. Has the witness been afforded an opportunity to share their own account of events?
2. Has the witness been asked open questions, or has the Investigator advanced questions that have shaped the account of the witness to align with the Investigator’s understanding of events?
3. Is there a need to afford the witness an opportunity to share their view on information or other evidence received in the course of the investigation that is in conflict with the account of the witness?
4. Are there factors that need to be considered, or inquiries that need to be made, in order to assess the credibility of the witness?
5. Are there any other individuals who may be relevant witnesses that need to be interviewed?

The above questions are salient as the manner in which evidence is gathered from witnesses can have a significant bearing on the ability of a decision-maker to rely upon that evidence and any associated investigation findings.

Affording procedural fairness to respondents

A common criticism that arises in respect of an Investigator’s dealings with a respondent is a lack of appreciation of the importance of procedural fairness.

Before concluding any dealings with a respondent, the Investigator ought to consider the following:

1. Have the allegations against the respondent been reduced to writing and provided to the respondent?
2. Do the written allegations contain sufficient particulars so that the respondent has a complete understanding of the allegations being raised against them?
3. Is there other relevant information that will be considered and/or relied upon by the Investigator when making investigation findings, such as information obtained from witnesses that conflicts with the account of the respondent (Other Relevant Information) that ought to be presented to the respondent?
4. Has the respondent been afforded the opportunity to respond to the allegations and Other Relevant Information in writing?
5. Is it necessary to hold more than one interview with the respondent due to the order in which evidence and other information has been received by the Investigator?
6. If due to the seriousness of the allegations, it is necessary to require the respondent to attend an investigation interview and provide their response to the allegations on short notice, has the respondent received prior notice as to the purpose of the interview?
7. Has the respondent been afforded the opportunity to have a support person accompany them to an investigation interview?
8. Have efforts been made to ascertain if the respondent has special needs that will affect their ability to understand and/or respond to the allegations against them? What steps have been taken to cater to any special needs (e.g. arranging translation services)?
9. Has the respondent received a copy of the interview transcript or their statement to ensure it accurately captures their response to the allegations?

In circumstances where procedural deficiencies have been identified prior to the conclusion of a workplace investigation, workplace relations practitioners should not be afraid to take the necessary additional steps to remedy those deficiencies.

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The information in this Insight is of a general nature; it is not, and not intended to be, legal or other professional advice.  You should always obtain specific advice before acting on any information in this Insight.  If you or someone you know would benefit from additional information or requires help or advice, please call us on 03 7020 6550 or email us at [email protected]