Workplace Investigation – what can you do with uncooperative parties during an investigation.
An issue that may be confronted during a workplace investigation is uncooperative parties, complainants, witnesses and the person subject of the complaint (generally referred to as the respondent).
Workplace Investigation – uncooperative respondents
It is important to be careful not to attribute blame or guilt when a person subject of a complaints or misconduct workplace investigation is uncooperative, you must keep an open mind.
Two crucial components of procedural fairness are:
(a) The respondent has the right to know the nature of the complaint or allegations made against them
(b) The respondent has the right to be heard (the right to respondent to the complaint or allegations made against them)
At times adhering to procedural fairness might mean having to be patient.
Generally responses from the person subject of a complaints or a misconduct workplace investigation will come either in written form or the participation in an interview.
- Refuse to respond
- Delay the response providing various reasons why they have not responded
- Continually ‘roadblock’ the investigation by being unavailable to be interviewed, cancelling interview appointments or not showing up.
What can employers do?
- Set reasonable deadlines, but be patient and allow some latitude.
- Listen and take account of the reasons for the cancellation of interviews or delayed responses
- Re-schedule interview appointments when needed.
- Work with the respondent, allow them time to prepare.
If the ‘stalling’ is without good reason and continues;
- Set a final deadline, again be reasonable, (don’t rush the process) but remember that other people may be affected by the investigation and courts and tribunal have criticised organisations for workplace investigations that were not carried out in a timely manner.
- Advise the respondent that if they fail to respond or attend an interview by the deadline, the investigation will continue and that findings may be made on the information that you currently have on hand.
If the respondent continues to be uncooperative proceed with the investigation.
Workplace Investigation – uncooperative complaints
Although less common than uncooperative respondents I have encountered situations where the complainant is uncooperative, this has been in cases where a written complaint has been made and then the complainant refuses to provide further information and/or be involved in the investigation.
This situation presents a number of problem, please refer to this article that reviews what to do when an employee does not want an investigation into their complaint? http://awpti.com.au/employee-investigation/
In this case I recommend that you proceed with the information you have and advise the complainant that the investigation will continue and that findings may be made on the information that you currently have on hand.
This can cause some difficulties in providing the person subject of the complaint with full details of the complaint or allegation, each case is different, please contact me for assistance firstname.lastname@example.org
Workplace Investigation – uncooperative witnesses
Unless you have something in your policy or Code of Conduct that compels employees (which I suggest would be rare) there is little you can do with uncooperative witnesses other than to discuss the reasons why they do not wish to cooperative and reassure them in relation to their concerns if you can.
Bottom line is generally you really can’t compel witness to be part of a workplace investigation.
Support people themselves are usually not uncooperative however 2 issues can arise usually from the perspective of the respondent;
(1) I can’t get a support person
(2) My support person is not available at…..
It is recommended that you are flexible and have some patience and understand that the support person may also need reasonable notice, however is it not reasonable to unduly hold up the investigation, it may be the case that the party will have to get a different support person.
As I previously stated it is important to remember that courts and tribunal have criticised organisations for workplace investigations that were not carried out in a timely manner and the Fair Work Commission will only take into account unreasonable refusal to allow for a support person.
The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.
You can contact me on 02 9674 4279 or email@example.com
This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory. It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigators.
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