How to Run a Fair Investigation

Fair workplace investigations are built on fundamental principles of natural justice and procedural fairness. These aren't just theoretical concepts—they're practical requirements that courts and the Employment Relations Authority will scrutinise when reviewing your actions.

The principle of natural justice requires that people affected by decisions have the right to know the case against them and the opportunity to respond. This means clearly communicating allegations, providing relevant information, and genuinely considering responses before reaching conclusions.

Procedural fairness demands that investigations are conducted by appropriate people, follow consistent processes, and are free from bias or predetermined outcomes. The investigator should approach the matter with an open mind and be willing to change their view based on evidence gathered.

Good faith, as required under employment law, means acting honestly and openly, not misleading parties about the process, and genuinely attempting to resolve issues fairly. This includes keeping parties reasonably informed about progress and timeframes.

Proper planning is essential before beginning any workplace investigation. Start by clearly defining what you're investigating—vague or overly broad allegations make it difficult to conduct a focused investigation and can lead to procedural unfairness.

Determine who should conduct the investigation. The investigator must be impartial and have appropriate skills and authority. For serious matters, consider using an external investigator to ensure independence, particularly if senior management is involved or there are potential conflicts of interest.

Develop an investigation plan that outlines the key questions to be answered, potential witnesses to interview, documents to review, and the expected timeframe. This helps ensure thoroughness and demonstrates that you've approached the matter systematically.

Consider whether any immediate action is needed, such as separating parties to prevent further incidents or preserving evidence. However, avoid taking disciplinary action before the investigation is complete, as this can suggest predetermined outcomes.

Effective evidence gathering requires a systematic approach that ensures all relevant information is collected and properly documented. Start by securing any physical evidence, electronic records, or documents that might be relevant to the allegations.

When reviewing documents, look for emails, text messages, CCTV footage, attendance records, performance reviews, and any previous complaints or incidents involving the parties. Ensure you preserve electronic evidence properly, as deleted files or overwritten security footage can undermine your investigation.

Interview witnesses systematically, starting with the complainant, then the respondent, followed by other witnesses. Prepare questions in advance but remain flexible to explore new information that emerges. Take detailed notes or consider recording interviews with consent.

Maintain a clear evidence trail by numbering and dating all documents, keeping interview notes organised, and creating a chronology of events. This documentation will be crucial if the matter proceeds to formal disciplinary action or legal proceedings.

Interviews are often the most critical part of workplace investigations, and how you conduct them can significantly impact the fairness and effectiveness of the process. Each interview should be planned, structured, and documented properly.

Begin each interview by explaining the purpose, the allegations being investigated, and the interviewee's rights, including their right to have a support person present. Make it clear that the investigation is fact-finding, not disciplinary, and that no decisions have been made.

Use open-ended questions to encourage detailed responses, and follow up with specific questions to clarify important points. Avoid leading questions that suggest particular answers, and remain neutral in your tone and body language throughout the interview.

Give the respondent a full opportunity to respond to allegations, including the chance to provide their version of events, explain their actions, and present any evidence or witnesses that support their position. This is a fundamental requirement of natural justice.

Document interviews thoroughly, either through detailed notes or recordings with consent. Consider providing interview summaries to participants for verification, particularly for key interviews with complainants and respondents.

Bias is one of the most common reasons workplace investigations are found to be unfair. It can arise from personal relationships, preconceived notions, or conflicts of interest that compromise the investigator's impartiality.

Identify potential conflicts of interest early in the process. If the investigator has a personal relationship with any party, has been involved in previous incidents with them, or has a vested interest in the outcome, they should not conduct the investigation.

Be aware of unconscious bias that might affect how you interpret evidence or assess credibility. This includes assumptions based on gender, age, cultural background, or position within the organisation. Focus on facts and evidence rather than impressions or gut feelings.

Document your reasoning for key decisions throughout the investigation. This helps demonstrate that conclusions are based on evidence rather than bias, and provides a clear audit trail if the investigation is later challenged.

Consider having investigation findings reviewed by another person before finalising them, particularly for serious matters. A fresh perspective can help identify potential bias or gaps in reasoning.

Drawing conclusions from investigation evidence requires careful analysis and clear reasoning. Your findings must be based on the evidence gathered, not on assumptions, speculation, or predetermined views about what happened.

Assess the credibility and reliability of different pieces of evidence. Consider factors such as consistency between accounts, corroborating evidence, the demeanour of witnesses, and any potential motives for providing false information.

Apply the appropriate standard of proof. For most workplace investigations, this is the balance of probabilities—whether it's more likely than not that the alleged conduct occurred. This is a lower standard than criminal proceedings but still requires solid evidence.

Clearly document your reasoning for each finding. Explain what evidence you relied on, why you found certain witnesses credible, and how you resolved any conflicts in the evidence. This transparency is crucial for demonstrating fairness.

Consider alternative explanations for events and explain why you've rejected them. This shows you've approached the investigation with an open mind and considered all possibilities before reaching your conclusions.

A well-written investigation report is essential for documenting your process and findings. It serves as the foundation for any subsequent disciplinary action and provides crucial evidence if the matter is later challenged.

Structure your report logically, starting with the allegations, methodology, and scope of investigation. Include a chronology of events, summary of evidence gathered, and analysis of key issues. Conclude with clear findings and recommendations.

Present evidence objectively, distinguishing between facts established through evidence and opinions or interpretations. Include relevant quotes from interviews and references to supporting documents, but avoid including irrelevant or prejudicial information.

Make your reasoning transparent by explaining how you reached each conclusion. Address any conflicts in evidence and explain why you preferred certain accounts over others. This demonstrates thorough analysis and helps defend your findings if challenged.

Keep the report focused on the specific allegations being investigated. Avoid making broader comments about character or performance unless directly relevant to the matters at hand.

The investigation doesn't end with your findings—proper follow-up is essential to ensure fair process and effective resolution. How you handle the post-investigation phase can be just as important as the investigation itself.

Provide your findings to relevant parties in an appropriate manner. The respondent should generally receive a copy of findings that affect them, along with an opportunity to respond before any disciplinary action is taken. This is another requirement of natural justice.

If disciplinary action is warranted, ensure it's proportionate to the misconduct found and consistent with previous similar cases. Consider the employee's employment history, any mitigating factors, and the impact of their actions on the workplace.

Implement any recommended changes to policies, procedures, or workplace practices that emerged from the investigation. This demonstrates that you're committed to preventing similar issues in the future.

Monitor the workplace for any signs of retaliation against complainants or witnesses. Take swift action if any retaliatory behaviour occurs, as this can expose your organisation to additional legal risks.

Consider whether any follow-up training, mediation, or support is needed to repair workplace relationships and prevent future issues.

Even well-intentioned investigations can fail due to common procedural errors that compromise fairness and validity. Understanding these pitfalls can help you avoid costly mistakes that could invalidate your entire process.

One of the most serious mistakes is predetermining the outcome before completing the investigation. This can occur when decision-makers express strong views about guilt or appropriate punishment before all evidence is gathered and analysed.

Failing to give the respondent adequate opportunity to respond is another fundamental error. This includes not clearly explaining the allegations, not providing sufficient time to prepare responses, or not genuinely considering their explanations and evidence.

Inadequate documentation can also undermine investigations. Poor note-taking, failure to preserve evidence, or incomplete investigation reports make it difficult to defend your process and conclusions later.

Breaching confidentiality by discussing the investigation inappropriately or allowing information to spread through workplace gossip can compromise the process and expose your organisation to additional legal risks.

Finally, taking too long to complete investigations without good reason can breach the duty of good faith and prejudice the process. While thoroughness is important, unreasonable delays can be just as problematic as rushing to judgment.