Conducting Workplace Investigations – Part 3

This is the third article on the correct and (safe) method of conducting an internal investigation due to workplace conflict or misconduct. The first two articles in previous issues of Security Solutions Magazine outlined the steps involved in conducting an investigation. This article will outline some common pitfalls with not conducting an internal investigation correctly or of not conducting one at all.

There is one very good reason companies ignore the need to conduct an internal investigation, and that is because it is hard. The process is often referred to as the dark side of human resources (HR) and is something a lot of HR professionals and managers do not like to do. The reason for this is that investigations are complex, involve expert knowledge, involve some emotion (the perpetrator/s and the investigators usually know each other) and are time consuming. Without the correct person conducting the investigation, the outcome can be very costly to all involved, including the company as its employees and reputation are dragged before the Industrial Relations Commission.

Some very important points to consider when either conducting an investigation or reviewing one are:

• The subject of the complaint must have been interviewed and been offered the opportunity to defend himself or offer new evidence. Failure to do this can result in an aggrieved employee who could become more of a problem than previously was the case, or who takes the matter before a tribunal due to feelings of not being treated fairly. All parties involved must be spoken to and provided the opportunity to have their say and present inculpatory or exculpatory evidence, as the case may be.

• It is possible to summarily dismiss (sack on the spot) an employee, but due process must be followed. Employers have the right to summarily dismiss for conduct that is serious enough to justify it. However, prior to doing this, all the evidence and all the available options must be considered. For the summarily dismissal to be lawful, it must be established that the actions of the employee being dismissed are serious enough to warrant it. Before summary dismissal:

  • Ensure that the investigation is competent. If the matter being investigated might, if found to be true, warrant summary dismissal, an employer can consider suspending the employee subject to the investigation until the outcome of the investigation is known.
  • Be aware of the employee’s employment record and establish if he has been subject to a previous complaint or not and if that previous incident was serious.
  • Be aware of and consider available options (including demotion, counselling, movement to another workplace, or training) and document the decision-making process.
  • Ensure that saving money does not play any part in the decision-making process.
  • Do not let the temptation of ‘sending a message’ to the workforce play any part in the decision-making process.

• The HR manager should not be given the sole responsibility in deciding the outcome of an internal investigation. Before taking any disciplinary action, ensure that the investigation has complied with any legal obligations and that it has followed the organisation’s policies and codes of conduct.

Failure to conduct competent internal investigations could have grave consequences for a business. The following court matters highlight some of the court decisions that have gone against businesses who have not conducted fair and reasonable investigations. In one case, an employee was reinstated to his former role in the company and, as compensation, his employer was ordered to pay him six month’s salary.

  • Bruce v AWB Ltd [2000] FCA
  • Concut Pty Ltd v Worrell [2000] HCA
  • Smith v Aussie Waste Management Pty Ltd [2015] FWC 1044
  • John Pinawin t/a RoseVi Hair Face.Body v Edwin Domingo [2012] FWAFB 1359
  • Lloyd & Co Pty Ltd v Shuttle ([2016] FWCFB 144)

Finally, ensure that the investigator has collected all available evidence. Evidence is any information that can be considered to assist in determining a fair, reasonable and just outcome for the business and all those involved. Sources of evidence include:

  • letters of complaints
  • informant information
  • proceeds of a search
  • observations
  • interviews
  • statements
  • documents
  • photographs
  • emails
  • forensic evidence
  • computer records
  • other physical items.

Investigators are not bound to only look at certain types of evidence; they are obliged to consider any evidence that is relevant, reliable and fair. Failure to do this could result in adverse and costly decisions against the business being made by the Fair Work Commission. There is a plethora of decisions from the various industrial relations tribunals in the country, as well as from the various criminal and civil courts that you could rely on to help determine what is relevant, reliable and fair. The terms are also defined in the various evidence acts that operate in each state of Australia.

My next series of articles will outline what bullying is, what effect it has on the workplace, what can be done about it and what happens if nothing is done.

Greg Byrne
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.