Conducting Workplace Investigations – Part 2

By Greg Byrne

In this edition of the Security Solutions Magazine, I will conclude the two-part article on conducting an internal investigation. In the previous article (in Security Solutions Magazine Issue 106), I discussed that conducting an internal investigation involved a four-step process of:

1. Preparation and information collection

2. Interviewing the relevant parties

3. Making a finding and report

4. Resolution activities.

In that article, I outlined the first two steps of preparation and information collection and interviewing the relevant parties and any witnesses. I discussed that the process of collecting information involved first establishing that there was a need to conduct an investigation in the first place, that it was vital that an independent and competent investigator be appointed, and that a proper interview process and plan was prepared and followed. The second step in the process was then to conduct the interviews, which involved identification of appropriate locations, correct and accurate record keeping, and maintaining the confidentiality of the process, including securing records of the interview and any evidence gathered.

This article will outline the last two steps for investigators in conducting an internal investigation. The first is making a finding and the second resolving the complaint.

When arriving at a finding, it is vitally important to objectively assess all evidence that has been gathered. The information gathered should be consistent, reliable and credible and, if discrepancies exist, they should have been addressed. In weighing the evidence and arriving at a logical outcome, ensure that the reasonable person test has been applied, and consider that the more serious the implication of a finding the stronger the balance of probabilities test needs to be.

Consider the fallout from the complaint and subsequent investigation and make sure that the welfare of all involved has been addressed, including the offending employee (if it is established there is one). Also consider what the complainant intended when making the complaint and that his wishes have been considered when arriving at a finding. Make sure the employer’s wishes have also been considered, since they are the people paying wages and are also responsible for ensuring a safe (free of bullying or harassment) workplace.

Internal policies (such as meal room etiquette, movement around worksites and wearing of uniform) and external policies and legislation (such as work, health and safety [WHS], state crimes acts and other relevant acts) must also be considered. Police should be informed if criminal behaviour was either initially complained of or is detected during the investigation. Be aware that once the police have become involved, they must be informed of the existence of any information that could form part of a police brief of evidence.

When compiling information, consider summarising it using an evidence matrix. Then make findings on each of the matters complained of in the first instance, or anything arising. List elements of each complaint and make a finding on the facts:

• behaviour found to have occurred

• behaviour found NOT to have occurred

• inconclusive.

Then categorise as:

• potentially unlawful

• breach of policy/code

• unreasonable

• unprofessional

• reasonable in all the circumstances.

Decision Making

Once all relevant persons have been interviewed, the welfare of all concerned (including any offending employees) and the wishes of the employee and the employer have been considered, and the information has been categorised, it is now time to make a decision.

Firstly, do not leave any material matters unaddressed. A finding might be that there is insufficient evidence to support a finding of inappropriate behaviour or that the case against the respondent has not been established on the balance of probabilities. It is not fair to the respondent(s) to leave a matter unresolved.

Take one last look at the various elements of the complaint in totality and see if there is a pattern of behaviour. Ensure that a connection between the evidence and findings and any subsequent conclusions has been established so that the rationale is evident.

Findings should be presented in a workplace investigation report that outlines the evidence uncovered or discovered and details how the organisation could deal with the complaint if it is submitted in subsequent legal proceedings. For example, if a complaint is lodged with the Human Rights and Equal Opportunity Commission or another anti-discrimination agency, records of internal action will be useful in establishing whether ‘reasonable steps’ were taken to deal with the discrimination/harassment and may assist in discharging the organisation’s liability.

In the process of compiling an investigation report and making findings (and making recommendations, if requested), consider that:

• all the issues have been covered

• everyone who should have been interviewed has been

• all respondents against whom an adverse finding might be made have been advised of the relevant allegation and have been given a chance to respond to the allegation.

Also ensure that all witnesses have had the opportunity to review and make any necessary corrections to their statements and that statements have been signed. Ensure that the decision-making process applied the balance of probability test and established that it was more probable than not that it occurred (an evidence matrix form as discussed above is a useful tool to assist investigators in this regard).

Once the report has been compiled and the employer, aggrieved parties and offending parties have all been informed of the outcomes, consider resolving the complaint in a lawful and efficient manner. Every situation is different and the suitability of resolution activities varies accordingly. The decision-making process must consider all the evidence at hand and must consider the interests of all concerned, including the public interest where appropriate. Some outcomes may include:

• conciliation/mediation

• counselling

• formal apology

• training

• communication of policies to the workforce

• re-crediting any leave taken as a result of the discrimination or harassment

• disciplinary action – for example, warning, dismissal, transfer, demotion

• dismissal of the complaint if it is found to have no substance

• increased supervision/monitoring

• reimbursing costs (for example, medical, counselling)

• disciplinary action against the complainant if the complaint was vexatious or malicious

• applying an appeals process if parties are not satisfied with the investigation result.

Communication

Keep in mind that while an investigation may be carried out that meets all process requirements, it is the perceptions of the individuals involved that will influence their ability to accept the outcome. With this in mind, consider creating and following a communication plan.

That then is the brief outline on how an internal investigation should be planned for, conducted and finalised. I intended writing two articles on this, but I ran out of room to also cover some important information. I think some of the issues that I have not covered yet are important and, as a result, I will include them in a third article on conducting workplace investigations.

Greg Byrne is CEO and director of MultiSec Consultancy Pty Ltd, a multi-faceted consultancy advising CEOs and boards of security organisations in Australia on best approaches to manage business risk, particularly operations, disaster recovery, business continuity and human resources. Greg can be contacted via email greg@multisec.com.au or on 0402 295 124.