Conducting Workplace Investigations

Welcome to 2017. The festive season is always busy for the security and law enforcements industries in Australia and around the world. I hope that you all had a great Christmas and new year, and your company and family prosper throughout 2017.

We are in a period of increased social and political conservatism, which is heralding great change for us all, and no more so than for the security industry. With that change comes increased regulation and increased regulatory reporting. Human resources (HR) will of course be one of the leading sources of change. For the greater part of this year, I am going to keep readers updated on those changes as was well as participate in some of the trends that the Security Solutions Magazine will follow throughout the year.

In this edition, this column will start to address the issue of workplace investigations, outlining the first two of the four suggested steps. In the next edition, this column will participate in that issue’s theme of recovery from a crisis. I will detail how an organisation would best recover its HR functions and processes following any form of serious interruption to normal business, such as terrorist strike, the catastrophic meltdown of IT infrastructure including loss of HR records, destructive fire, or theft of HR and customer records. In the following edition, I will address the final two steps of the investigation process and in the edition after that, I will outline some of the pitfalls and suggest a process that should put an organisation on solid ground when attempting to manage workplace relationships, employee performance and/or breaches of policy/procedure.

The Process

There are four main steps to conducting a workplace investigation:

  1. preparation and information collection
  2. interviewing the relevant parties
  3. making a finding and report
  4. resolution activities

It is vitally important to ensure that communication and feedback take place throughout the investigative process so that all relevant parties are in the loop and understand what and why things are occurring. This includes communication with managers, team leaders and involved parties (where appropriate).

Please note that this article is an overview of the workplace investigation and not a definitive step-by-step guide on how to conduct a workplace investigation. A workplace investigation should be conducted by a suitably qualified individual or organisation. It is vitally important, especially if the Fair Work Commission (FWC) or a court of any kind is the outcome, that due process is followed and most importantly that the investigation is fair.

Preparing for a Workplace Investigation

  • Establish that there is need to conduct a workplace investigation in the first place. These processes can be very disruptive to a workplace and the decision to conduct one should not be taken lightly.
  • Is the appointed investigator the right person? Is there a conflict of interest, does he/she have the required skills and knowledge, are there any relationships that could/will affect the credibility of the outcome and so on.
  • Is it the right time for an investigation to take place?
  • Do you have a suitable location for the investigation?
  • Identify the parties to the matter and their location and availability.
  • Conduct all relevant research, including:
  • obtaining the record of complaint
  • establishing any relevant policies and procedures and codes of conduct
  • identifying legislation that will affect the process and possible outcomes of the investigation
  • identifying all relevant training records
  • identifying relevant position descriptions (PDs)
  • locating any employment contracts and applicable award or workplace agreement and any relevant term(s) or obligations
  • obtaining past performance reviews, employment records and CVs;
  • determining if there are there any previous incidents/investigations or complaints and how were they managed
  • determining if there is there an observed pattern of behaviour

Additionally, prepare an interview plan and ensure the manager has viewed and agrees with it. Plan for a second interview with both the complainant and the respondent to provide feedback on either the outcome or the process and to allow for clarification of prior statements or outcomes of interviews with others on the periphery of the issue/investigation.

Interviewing Involved Parties

Ensure:

  • that those being interviewed or who are affected or aggrieved in any way are offered adequate representation or support
  • that if any of the involved or aggrieved have special needs, that those needs are addressed; for example, non-English speaking people should be offered an interpreter (note: if there is a chance that the issue could end up at FWC or any type of court that a registered interpreter is used)
  • that if the interviewee is a member of a union, that a union representative is at least in the loop and, where appropriate, is present during the interview (as a support person)
  • the interviewee is fully aware of his rights and fully understands the allegation or reason for the interview and investigation
  • the complainant understands the process and is aware of the relevant policies/options open to him in having his complaint handled

Also consider:

  • confidentiality, including the need to protect the integrity of the investigation process
  • how information and material will be communicated to the respondent(s)
  • how statements and interviews will be recorded, for example, typed or audio recorded (ensure permission to audio record the conversation and, given that, that permission is recorded somehow)
  • how notes and records will be stored, documented and lawfully obtained
  • that as much specific detail (evidence) as possible has been obtained
  • that there is a thorough (and dynamic) list of potential witnesses
  • that the information being gathered is relevant, reliable and fair
  • that the probative value of the information obtained is tested and that it is current
  • that, where possible, claims and gathered evidence is/are corroborated

When finalising interviews:

  • ask the interviewee if he has any further questions
  • explain timings and when the interviewee can expect feedback
  • ensure that (where required/appropriate/lawful) statements, records, exhibits and documents are reviewed and signed by interviewees or owners of the records

When considering recommendations, also consider:

  • the appropriateness of existing work arrangements, having regard to the issues raised/detected during the investigation
  • if investigtors are managing emotions and being empathetic where appropriate
  • how the interviewee is feeling, the impact of the issue being investigated, and the impact the interview process has or is having on him
  • if any ongoing support is required, for example, an Employee Assistance Program (EAP)

 

Greg Byrne is the managing director of Multisec Consultancy Pty Ltd. He lectures part time at Western Sydney University for an undergraduate diploma in policing and is a subeditor for and board member of the Australian Police Journal. His academic qualifications include Master of Management, Diploma of HR, Grad Cert in Leadership and a Diploma of Security Risk Management. Greg can be contacted via email greg@multisec.com.au

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