13 February 2019

When an employee makes an informal or formal complaint, an employer should take immediate steps to stop the alleged conflict, protect the involved parties and begin investigations. Responsiveness to a complaint and an investigation will not only yield the best information and evidence, but it will also enhance both the investigator’s and the employer’s credibility. Employers are legally obligated to investigate complaints (harassment, discrimination, retaliation, safety and ethical) in a timely manner.

Given that every complaint has the potential to become a lawsuit, employers should investigate every case in a way it can be presented to a court of law, if necessary.

Before embarking on an internal investigation, we recommend that an employer consider the following five top tips.

Tip 1 Plan the investigation carefully!

An investigation must be planned to be effective and properly executed. A complete plan should address the following:

(a) Include an outline of the issue. There is often a temptation to launch into an investigation without sufficient details of the complaint(s). There is little point in putting forward an allegation(s) without:

  • details of exactly what the allegation means, e.g. ‘treated unfairly’ is too broad; specific details of how and why should be provided
  • examples of incidents, times and preferably dates
  • context.

(b) Develop a witness list and a plan for the interviews including:

  • the order of witness interviews at the outset to avoid collusion
  • a list of interview questions targeted to elicit crucial information and details.

(c) Appoint an appropriate investigator. The appropriate investigator should have:

  • an ability to investigate objectively without bias
  • no stake in the outcome and no personal relationship with the involved parties – the outcome should not directly affect the investigator’s position within the organisation
  • skills that include prior investigative knowledge and working knowledge of employment laws
  • strong interpersonal skills to build a rapport with the parties involved and to be perceived as neutral and fair
  • attention to detail
  • the right temperament to conduct interviews.

(d) Provide sources for information and evidence, i.e. policies, training manuals etc.

(e) Set up a process for document retention throughout the investigation process.

Tip 2 Don’t let the investigation become a popularity contest!

Only interview witnesses who directly saw or heard something relevant to the investigation, not witnesses who are acting on hearsay.

Tip 3 Ensure you have signed acknowledgements of confidentiality from each person involved.

Have everyone who participates in the process, including support people, sign acknowledgements of confidentiality.

Make sure you are clear about the role of the support person up front.

It should also be explained that to conduct an effective investigation, some information will be revealed to the accused and potential witnesses, but that information will be shared only on a ‘need to know’ basis. An employer should never promise absolute confidentiality to any party involved in the investigation.

Tip 4 Analyse the witness interviews and write a detailed report outlining your findings as an investigator for each allegation.

Don’t simply summarise the interviews and then fence sit. Be clear whether each allegation is substantiated or not, and provide clear support of your findings.

The final report should summarise:

  • the incident or issues investigated, including dates
  • parties involved
  • key factual and credibility findings, including sources referenced
  • employer policies or guidelines and their applicability to the investigation
  • specific conclusions
  • party (or parties) responsible for making the final determination
  • issues that could not be resolved and reasons for lack of resolution
  • employer actions taken.

The goal of the document is to ensure that if a court, jury or government agency were to review it, the reviewers would conclude that the employer took the situation seriously, responded immediately and appropriately, and had a documented good faith basis for any actions taken during or because of the investigation.

Tip 5 Be prepared for the post investigation fall-out!

You will likely need mediation or some method of dispute resolution to restore working relationships. These can be conducted either internally or outsourced.
Our team conducts annual training on conducting workplace investigations. For upcoming dates please view our online training schedule.

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.