In our six-part series on bullying, we covered the various rights and obligations that arise when there is bullying in the workplace. In this article, we focus on workplace investigations as a tool to identify and address behaviours amounting to workplace bullying, as well as harassment, unreasonable behaviour, misconduct and other complaints and concerns that arise in the workplace.
What is a workplace investigation?
A workplace investigation is a factual inquiry into a matter of concern or complaint. It often involves consideration of written material, as well as interviews of witnesses to the alleged events.
Why investigate an allegation?
Investigating a complaint or concern in the workplace can demonstrate the employer is taking that concern seriously and can demonstrate compliance with health and safety obligations. It allows the employer to obtain further information about the complaint, determine what is more likely than not to have occurred, and make an informed decision as to what steps can be taken to address the findings.
What does an investigation look like?
An employer may determine whether an investigation is needed (or whether another process is more appropriate), and what that investigation may look like, with the input of the employees involved.
In general, an employer is obligated to conduct any investigation in good faith and uphold natural justice principles. This means providing the respondent (the person whose alleged behaviour is being investigated) an opportunity to consider and respond to all the information gathered about their alleged conduct.
In deciding how a complaint will be investigated, an employer may need to considering its legal obligations, under:
- the Employment Relations Act 2000, to act in good faith and to ensure any actions taken are fair and reasonable;
- the Health and Safety at Work Act 2015 to ensure, as far as reasonably practicable, that they provide safe working conditions. This includes eliminating, or if not possible, minimising psychological harm;
- the Human Rights Act 1993, to avoid discriminating against a person in employment matters; and
- existing workplace policies and procedures.
Who is the investigator?
A workplace investigation can be undertaken by a neutral party within the organisation, or an external and independent person. Independent investigators are lawyers or certified private investigators with experience in employment law matters. Some have also done additional training through the Association of Workplace Investigators (AWI), hold a certificate from AWI and are a member of the Australasian Association of Workplace Investigators (AAWI).
The investigator acts as a fact finder – they make findings as to whether the events in a complaint or concern took place (more specifically whether it is more likely than not that the events complained about took place). The investigator does not make the call on what action is be taken by an employer after the end of the investigation (unless the employer asks them to do so).
Benefits of engaging an independent investigator
Employers can be held to account for the quality of their investigations which is why it is important a high level of care is taken to ensure these processes are fair. Engaging an independent person to run the fact-finding process helps to:
- mitigate any power imbalance between the complainant and respondent;
- remove (unconscious) decision-making bias;
- ensure a fair process for all witnesses involved;
- ensure that employment law obligations and natural justice principals are complied with;
- ensure adherence to cultural norms; and
- justify processes, outcomes and decisions, if challenged.
Depending on the nature of the conduct being investigated, employers may wish to consider engaging an investigator with experience in trauma-informed practice.
What is the outcome of an investigation?
The investigator completes their process by producing a report of findings. The report contains an analysis of the information gathered by the investigator. It is up to the employer to consider the report and act on its findings, in line with the obligations discussed above.
The team at Black Door Law are often engaged as independent investigators to assist with investigating allegations to bullying and harassment, and other breaches of employment obligations. Get in touch with us for a legally sound, independent investigation.
Disclaimer: This information is intended as general legal information and does not constitute legal advice. If you have a specific issue and wish to discuss it, contact the Black Door Law team.