Workplace Investigations – Is your house in order?

Workplaces have changed considerably over recent years. Compliance is increasingly complex, there are multiple avenues for complaints and the costs involved continue to rise. As a consequence, it is inevitable that complaints will be raised in the workplace, irrespective of the number of employees or the industry. Complaints regarding bullying, discrimination, harassment, unprofessional or unethical conduct, fraud or the misuse of work hours or resources, amongst others, may be raised against colleagues, management staff, clients, contractors, volunteers or customers.

The receipt of serious complaints can have the potential to considerably impact the productivity and safety of a workplace and can have detrimental effects on all involved. It is therefore vital that employers adequately address these complaints to ensure natural justice and procedural fairness are achieved, and to avoid liability and reputational damage.

This article provides an overview of the types of complaints raised in the workplace; when an investigation is required and when an external investigator should undertake the investigation. It discusses the importance of engaging external investigators with legal training, and the potential outcomes which may arise as a result of an external investigation.

When is an investigation required?

Employers may receive internal or external complaints and grievances regarding the conduct and behaviour of their employees, contractors and volunteers. While complaints can generally be dealt with in-house by human resources, management and internal legal counsel (by informal enquiries and discussions; mediation; training; performance review; informal counselling; etc.), employers may be required to investigate in accordance with their policies and procedures, or an investigation may be required or recommended for other reasons.

For the purpose of deciding whether an investigation should be undertaken, and if so, whether it should be done internally or externally, an employer should consider the following:

• seriousness and complexity of the allegations;
• real or perceived bias and conflicts of interest;
• role/seniority and numbers of staff involved;
• workload and emotional impacts on managers and staff;
• quality of evidence available and the requirement for specialist skills;
• required consideration of applicable laws, policies and procedures;
• capacity and expertise required to conduct the investigation in an efficient and timely manner; and
• potential application of legal professional privilege in relation to reports and communications.

When should you engage an external investigator?

An external workplace investigation is an independent inquiry into allegations about an employee’s conduct or behaviour to determine whether the relevant allegations are substantiated on the balance of probabilities (meaning they are more likely than not), unsubstantiated or found to be vexatious or frivolous. External investigators are able to provide unbiased and professional advice regarding the likelihood of a complaint occurring. Similarly, external investigators ensure conflicts of interest are avoided, and employees may feel more comfortable sharing their experiences with someone who is not employed by the same workplace.

Why should your external investigator have legal training?

While external investigators offer the aforementioned benefits, if they do not have legal training, they are limited in the advice they are qualified to provide. The legal risks for employers in relation to workplace conduct and behaviours have increased significantly in recent years, given the expansion of State and Federal regulation, particularly in the personal grievance jurisdictions. Such risks may include:

• applications for reinstatement or damages for unfair dismissal;
• damages and penalties under general protections regimes;
• stop-bullying applications;
• claims under anti-discrimination laws;
• damages for breach of contract;
• claims for breach of workplace health and safety requirements; and/or
• vicarious liability for the actions of employees involved in sexual harassment and bullying.

Employers often rely upon workplace investigations to make and defend serious disciplinary decisions, including termination of employment and help to promote appropriate workplace standards and accountability.

Where a complaint or grievance is not handled appropriately, the subject, complainant or other employees involved may be dissatisfied with the process or outcome, thus increasing the risk of a legal claim, reputational damage and impacts on workplace safety, culture and productivity.

Time and time again, poorly managed complaints and investigations are in particular, seen to significantly impact on and erode a positive workplace culture. Poor culture has a cascading effect as trust is lost, and performance plummets.

An investigation by an external investigator with legal training can give staff greater confidence that they will be given a fair hearing and that their concerns are being taken seriously by management. Lawyers are also subject to various professional and ethical obligations and are well-versed in the concepts of natural justice and procedural fairness, areas which are vital in workplace investigations.

What are the outcomes of external investigations?

Depending on the terms of reference for the investigation, external investigators may:

• establish the factual background to a complaint;
• determine whether a breach of a relevant code of conduct has occurred;
• provide advice regarding legal ramifications and risk;
• provide advice regarding disciplinary action, if appropriate; and/or
• provide insights and recommendations for changes to policies and procedures and appropriate management actions.

Conclusion

Gadens has extensive and broad-based experience in advising on and conducting workplace investigations from the simplest to the most complex. Our legal background ensures the required rigour is applied to the investigation process and our comprehensive knowledge of employment law means that we can advise on and conduct workplace investigations with insight into the legal framework and an organisation’s risk. Our experience allows us to tailor an appropriate approach and to quickly identify the nature and degree of risk, the matters that actually require investigation and the most practical and cost-effective way of managing the process.

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Authored by:

Jonathon Hadley, Partner

Gadens can assist employers by conducting investigations and managing the process from undertaking an initial review of the allegations to assisting in assessing the type of disciplinary action required, if any. To see how Gadens may be able to assist, please contact Jonathon Hadley, who leads the employment relations team in Brisbane, on either: jonathon.hadley@gadens.com or +61 7 3231 1653.