It is perhaps not surprising that, at one point or another, a need will arise at the workplace for an investigation – formal or informal – regarding a complaint or grievance about a work related matter. A workplace investigation is not only a best practice procedure available to an employer when needing to get to the heart of a workplace issue, be it about performance, absenteeism, culture, conduct, safety or otherwise. In some instances, investigations may sometimes also be legally required.
An investigation carries with it the concept of discovering the truth through an impartial information gathering process. In a workplace setting, it requires a careful examination of acts, omissions and events in order to make objective factual findings that assist in the implementation of appropriate outcomes.
It is important to assess quickly, when confronted with a workplace matter, whether an investigation is appropriate and, if so, by whom it should be done. Carrying out investigations internally can not only tie up considerable management time and resources, but can create legitimacy issues impacting on downstream legal considerations such as standards of proof, privacy protection, reporting criminal offences and maintaining confidentiality and legal professional privilege.
In many circumstances, insisting that serious complaints or allegations be resolved at the workplace level through a private or conciliatory approach is not always appropriate nor legally sensible. Often an evidence-based process with substantial investigative rigour can be far more protective of a business interests and of all persons concerned.
Equally, there are risks in incorrectly deciding to not investigate (or in not investigating because no decision was made at all). A claim of sexual harassment, for example, that is not investigated, may eventually lead to litigation where one likely issue will be the company’s failure to take all reasonable steps to prevent the sexual harassment from occurring. Worse still, failing to investigate may itself be portrayed as discrimination based on sex or race.
From a cultural perspective, an un-investigated complaint may leave the complainant feeling disheartened, and if the complaint was justified, may simply result in the person at fault increasing the level of improper activity, putting the company at increased legal risk. For that reason alone, it is good practice to take care when exercising the discretion to investigate or not.
While the need for an investigation is often apparent, the steps involved are often less so especially as no two investigations will never be the same. Some important key tips to structuring an investigation process include:
- Understanding the issue or issues;
- Planning carefully;
- Obtaining the evidence;
- Reviewing the evidence;
- Testing the evidence and making findings;
- Writing an investigation report;
- Determining appropriate outcomes; and
- Keeping proper records.
In some circumstances, an employee may raise a workplace issue casually with their employer, or make an “informal” complaint but does not wish for any formal action to be taken. This was the case in Swan v Monash Law Book Co-Operative  VSC 326 (“Swan”) where Ms Swan disclosed to her employer a pattern of serious bullying by her manager, but indicated she could not “cope” with an investigation. Consequently, nothing was done with Ms Swan’s complaint and the employer when the matter reached the Courts, tried to rely on the assertion by the employee that she could not “cope” in failing to take any remedial action at all.
In Swan, the Supreme Court of Victoria awarded the employee almost $600,000 in damages for severe psychological injuries resulting from the bullying behaviours Ms Swan was subjected to by her manager, on the basis that her employer failed to take reasonable care for her safety and did not provide a safe system of work.
In another decision, the Full Federal Court of Australia in Richardson v Oracle Corporation Australia Pty Limited  FCAFC 82 found that the employer failed to comply with its policies and obligations to investigate a serious complaint of sexual harassment, and that the employer had not taken all reasonable steps to prevent the sexual harassment. As a result, Ms Richardson was awarded $130,000 in damages, a portion of which was characterised as a tax-free general damages amount in recognition of the pain and suffering, hurt and humiliation suffered by Ms Richardson as a result of the harassment and bungled investigation.
We recommend that employers should have comprehensive and flexible policies, which deal with different workplace issues that may require an investigation, and set out a procedurally fair process for the conduct of a workplace investigation. Once those policies and procedures are in place, it is essential that employers ensure that they are properly communicated to employees, and understood by, employees, and are appropriately followed when the need for a workplace investigation arises. Where it would be inappropriate to conduct an investigation internally, employers should consider the benefits of engaging an expert.
In certain instances, an employer may have no say in who conducts an investigation (for example the Workplace Ombudsman, or WorkCover). When, however, an issue presents itself it is imperative to consider the advantages of using an external investigation service. The benefits of external investigators may include:
- They can be viewed as more neutral by employees;
- They have particular skills and expertise gained through experience;
- They provide completely impartial and objective assistance;
- If conducted by lawyers will be protected by legal professional privilege; and
- It may be easier to convince a court of tribunal about the integrity of an investigation when it has been independently conducted.
For more information about our complete investigation solutions, or to discuss an issue that requires investigation, please do not hesitate to contact our office for advice or assistance.
This alert is not intended to constitute, and should not be treated as, legal advice.