Workplace Investigations

Workplace investigations are typically triggered by complaints or concerns about employee conduct, policy breaches, or workplace incidents. Common triggers include allegations of bullying, harassment, discrimination, theft, safety breaches, or conflicts of interest. Employers have a duty to investigate serious allegations, particularly those involving potential harm to employees or the business.

The scope of an investigation must be clearly defined from the outset. This includes identifying specific allegations to be examined, relevant policies or procedures that may have been breached, and the potential consequences if allegations are substantiated. A poorly defined scope can lead to investigations that are either too narrow (missing important issues) or too broad (becoming unwieldy and unfair).

Employers must also consider whether an investigation is proportionate to the allegations. Minor policy breaches might be addressed through informal discussions, while serious misconduct allegations require formal investigation processes. The decision to investigate should be documented, including the reasons for the investigation and its intended scope.

Natural justice is the cornerstone of fair workplace investigations. It requires that people facing allegations know what they're accused of, have a genuine opportunity to respond, and that decisions are made by impartial decision-makers based on evidence rather than assumptions or bias.

The right to know the case against you means employees must be told the specific allegations, when and where incidents allegedly occurred, and what policies or standards they're alleged to have breached. Vague or general accusations don't meet natural justice requirements and can invalidate the entire process.

The right to be heard means employees must have adequate time to prepare their response, access to relevant documents and evidence, and the opportunity to present their side of the story. This includes the right to call witnesses, provide alternative explanations, and challenge evidence against them. Rushing this process or limiting response opportunities breaches natural justice.

Impartial decision-making requires that investigators and decision-makers don't have predetermined views, personal interests in the outcome, or relationships that could affect their judgment. Even the appearance of bias can be sufficient to invalidate an investigation.

Conflicts of interest in workplace investigations can take many forms and seriously compromise the process's integrity. Personal relationships between investigators and parties involved create obvious conflicts - investigators shouldn't investigate their friends, family members, or people they have personal disputes with.

Professional conflicts can be more subtle but equally problematic. These might include situations where the investigator has been involved in previous decisions affecting the employee, has a financial interest in the outcome, or is being considered for promotion that might be influenced by the investigation's results.

Organisational conflicts arise when investigators are too close to the situation being investigated. For example, a manager investigating their own team's conduct, or HR personnel investigating complaints about HR processes they helped design. Even if these people try to be objective, their proximity to the situation can create actual or perceived bias.

When conflicts are identified, employers must take steps to address them. This might involve appointing different investigators, using external investigators, or implementing oversight mechanisms to ensure fairness. Ignoring conflicts of interest is one of the most common ways investigations fail and can lead to successful legal challenges.

A proper investigation follows a structured process that ensures fairness and thoroughness. It begins with planning - defining the scope, appointing appropriate investigators, and establishing timelines. The investigation plan should identify what needs to be examined, who needs to be interviewed, and what evidence needs to be gathered.

Evidence gathering must be systematic and fair. This includes collecting relevant documents, interviewing witnesses, and examining physical evidence where applicable. All evidence should be properly documented and stored securely. Investigators must be careful not to contaminate evidence or lead witnesses in their questioning.

Interviews with all parties should be conducted fairly, with adequate notice given and support persons allowed where appropriate. Questions should be open-ended and designed to elicit facts rather than confirm predetermined conclusions. All interviews should be documented, preferably with written records provided to interviewees for verification.

The investigation should conclude with a written report that sets out the allegations, evidence gathered, findings made, and reasoning for those findings. The report should distinguish between facts that are established and inferences drawn from those facts. All parties should have the opportunity to comment on the report before final decisions are made.

Many workplace investigations fail due to preventable procedural errors. One of the most common flaws is predetermined outcomes - where investigators or decision-makers have already decided the result before completing the investigation. This might be evidenced by comments made before the investigation, failure to properly consider the employee's response, or rushing to conclusions without adequate evidence.

Inadequate notice is another frequent problem. Employees must be given sufficient detail about allegations and adequate time to prepare their response. Springing detailed allegations on someone in a meeting without prior notice breaches natural justice, even if they're given a chance to respond later.

Failure to consider alternative explanations or mitigating factors can also invalidate investigations. Investigators must genuinely consider the employee's version of events and any explanations they provide. Simply going through the motions of asking for a response without genuinely considering it isn't sufficient.

Documentation failures are also common - investigations that aren't properly documented, where records are incomplete or inaccurate, or where key decisions aren't recorded with their reasoning. Poor documentation makes it difficult to demonstrate that proper process was followed and can undermine otherwise valid investigations.

Employees facing workplace investigations have important rights that must be respected throughout the process. You have the right to know exactly what you're accused of, including specific details of alleged incidents, dates, times, and which policies or standards you're alleged to have breached. General or vague allegations aren't sufficient.

You have the right to adequate time to prepare your response. This means receiving allegations in writing with sufficient detail and having reasonable time to consider your position, gather evidence, and prepare your explanation. Being ambushed with allegations in a meeting without prior notice breaches your rights.

The right to representation or support is crucial. Depending on your employment agreement and company policy, you may be entitled to have a support person, union representative, or lawyer present during investigation meetings. Even where not explicitly provided for, employers should consider allowing support persons in serious matters.

You also have the right to present your side of the story fully, including calling witnesses, providing alternative explanations, and challenging evidence against you. Investigators must genuinely consider your response rather than simply going through the motions of asking for it.

Suspension during investigation is a serious step that should only be taken when justified by the circumstances. Employers can suspend employees on full pay while investigating serious allegations, but this must be reasonable and necessary to protect the investigation's integrity or workplace safety.

Suspension isn't disciplinary action - it's a neutral act designed to allow proper investigation without the employee's presence potentially compromising the process. However, suspension can have significant impacts on the employee's reputation and wellbeing, so it must be justified and regularly reviewed.

The decision to suspend should be based on objective factors such as the seriousness of allegations, risk of evidence tampering, potential for intimidation of witnesses, or safety concerns. Suspending someone simply because allegations have been made, without considering these factors, may be unjustified.

Suspended employees should be kept informed of the investigation's progress and given realistic timeframes for completion. Indefinite or unnecessarily prolonged suspension can breach good faith obligations and may constitute a breach of employment agreement.

Investigation outcomes can range from findings that allegations are unsubstantiated, through to findings of serious misconduct warranting dismissal. The key is that outcomes must be proportionate to findings and follow proper disciplinary process requirements.

If allegations are unsubstantiated, employers should clearly communicate this and take steps to restore the employee's reputation where it may have been affected. This might include communications to relevant staff or removal of investigation-related materials from personnel files.

Where allegations are substantiated, any disciplinary action must still follow proper process. This includes giving the employee opportunity to respond to proposed disciplinary action, considering their employment history and any mitigating factors, and ensuring the penalty fits the misconduct.

Employees who disagree with investigation findings or believe the process was flawed may have grounds for a personal grievance claim. This is particularly relevant where procedural flaws occurred or where disciplinary action seems disproportionate to findings.

Legal advice should be sought early in any serious workplace investigation, whether you're an employee facing allegations or an employer conducting the investigation. For employees, getting legal advice before responding to serious allegations can help protect your rights and ensure you present your case effectively.

Employers should consider legal advice when allegations are serious, when the investigation process is complex, or when there are potential conflicts of interest or procedural complications. Early legal input can help ensure proper process is followed and reduce the risk of successful challenges later.

If you're facing potential dismissal, discrimination allegations, or claims involving bullying or harassment, legal representation becomes particularly important. These matters can have significant career and financial consequences that justify the investment in proper legal advice.

Don't wait until after an investigation concludes to seek legal help if you believe the process is flawed. Early intervention can sometimes address procedural problems before they invalidate the entire process, potentially saving time, stress, and costs for everyone involved.