Too many managers and supervisors mishandle workplace investigations, leading to costly unfair dismissal claims, according to industrial advocate Miles Heffernan from Employer Advisors.
“Unfortunately, when a boss receives a complaint, or when there has been some form of misconduct, they often don’t follow a proper procedure, and don’t give due process to the person who is accused of doing the wrong thing, and the result is a costly unfair dismissal claim against the company,” he said.
Always seek professional advice before commencing a formal investigation
Mr Heffernan says any business that has to conduct a formal workplace investigation should always seek professional advice before proceeding.
“Firms like ours are experts in this area – we know the right steps to take to ensure a fair and proper process, that will greatly reduce your risk as far as a future unfair dismissal claim in concerned,” he said.
“By spending a little bit of money up front, and making sure the process is handled properly, you will save yourself time and money in the long run,” he said.
In the meantime, here are some things to think about if you have to commence an investigation at your workplace.
Make sure the complaint warrants an investigation
Some workplace problems can be sorted out with little fuss – for example, if someone is leaving dirty dishes in the office kitchen, or someone isn’t replacing the empty toilet rolls – they can be handled with a general reminder, or an informal chat with those responsible.
But when it comes to complaints about discrimination, sexual harassment, or bullying, then your alarm bells should be going off, and you should be commencing a formal investigation.
Always consider your obligations under work health and safety laws, workplace policies or otherwise, and determine whether it is necessary to carry out a workplace investigation to meet these obligations.
Generally, we would advise that you always err on the side of caution – it is much better to investigate to find out what is really going on, rather than ignore issues that might get worse over time.
Is there really a dispute?
It is not unheard of for both a complainant and a respondent to actually agree on the circumstances of what occurred – they might just differ on how those events should be interpreted.
Other times, the respondent might actually admit to the behaviour being complained about, and essentially throw themselves before the mercy of their employer, hoping for leniency.
In these instances, carrying out workplace investigations might not be necessary.
Planning and preparation are key
Before taking any action, you should consider the seriousness of the allegations.
An allegation that could result in a person’s employment being terminated will almost always require a more extensive workplace investigation, than an allegation which may only lead to an informal warning.
Planning how you are going to handle the investigation is key. Here are some steps to consider:
- interview the complainant to make sure you have a full understanding of the allegations
- inform the respondent/s about the allegations and that an investigation has commenced
- don’t delay. The investigation should be completed as soon as possible
- interview any relevant witnesses — ask them: who, what, when, how and why
- consider all of the available evidence in an impartial manner (if you feel that you can’t, then ask someone else to take over)
- inform the respondent in writing of any evidence that you have found
- allow the respondent a full opportunity to respond to the allegations and evidence before you make any findings
- inform the respondent (again in writing) of your findings.
The Briginshaw Principle
Investigators should know that in matters involving serious allegations that could result in the termination of someone’e employment, the Briginshaw Principle applies.
That means, if you are going to sack someone, you must have strong evidence, and not just rely on the ‘balance of probabilities.’
“For example, where there are two different versions of what happened, and there are no other witnesses, an investigator can’t just decide to believe either the complainant or the respondent over the other, simply because they might like that person more,” Mr Heffernan said.
“That’s where many businesses come unstuck and end up paying compensation in an unfair dismissal claim.”
If you need to commence a workplace investigation, or need assistance managing a difficult employee, we can help.
Please call Employer Advisors today on 1300 853 837.
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