Workplace investigation bias conflict of interest

Workplace investigation bias conflict of interest – How can you avoid being accused of bias or a conflict of interest during an internal investigation.

When it comes to bias or conflict of interest, if it looks like a duck, quacks like a duck, it’s a duck, by that I mean not only do you have to ensure that there is no actual bias or conflict of interest, you must ensure that there doesn’t appear to be any & there is no potential for any.

This can be very difficult if you are conducting an internal investigation as the is a high likelihood that as a HR professional you may know or have had sealing with the parties in the past.  This is more difficult if the person subject of the allegations is a manager or senior manager or perhaps ever you manager.

One of the best ways to avoid any sort of bias or conflicts of interest is to engage an external investigator to conduct the investigation and provide you with findings and recommendations.

Bias
1. Don’t allow personal feeling or past dealings to affect your judgment
2. Don’t allow any past behaviours on the part of the person you are investigating to affect your judgment, just because they did it in the past doesn’t mean they did it this time.
3. Never allow generalisations to affect your judgement, such as, ‘it’s the sort of they he would do” or “It’s the way she is”
4. Focus on the evidence
5. Ensure that all parties are afforded procedural fairness

Important things to remember during the investigation

From time to time I am asked to review investigations, theses are common examples of bias I see in interviewee transcripts and what you should/should not do;

1. Avoid showing that you agree or disagree with any of the parties especially the complainant or respondent, remember to remain neutral
2. Don’t say anything that gives the complainant or respondent the impression that you are on their side, avoid comments such as, “yes i agree” or “I understand what you are going through”
3. Don’t say anything that gives the complainant or respondent the impression that you are not on their side and you have made your decision, comments such as“in my opinion this is not bullying” (said to a complainant during an interview).
4. Never attempt to rephrase what as as party has told you in your own words, for example, “what I am hearing you say if that……” It is fine to repeat back to an interviewee what they have said, just don’t put your own interpretation and/or change their meaning.
5. Never give the complainant or respondent the impression that you have come to a conclusion during an interview. Conclusions, findings and recommendations are for the final report.

Conflict of interest.
1. Don’t allow any of your bias’ affect your final decision
2. Never allow your own interests to affect you final decision or recommendations
3. Don’t allow the wishes of others (especially senior management) to affect your judgment, focus on the evidence only
4. The decision must be based on the evidence not what is best for your career or the organisation

If others in the organisation especially senior management are ‘pushing’ for a particular outcome it would be wise to  engage an external investigator to conduct the investigation, that way if the outcome is not what they had in mind you can blame the investigator.

When i conduct an investigation I advise all the parties and my client that the outcome of the investigation, findings and recommendations will be based solely on the evidence.

If a bias or conflict of interest is present, declare it, manage it or remove yourself from the investigation. If you can’t do that, outsource, contact me phil@awpti.com.au

What the FWC said about workplace Investigation outsourcing – Full article here

The Fair Work Commission in the case of, Xiaoli Cao v Metro Assist Inc; Rita Wilkinson [2016] FWC 5592 has highlight the need for employers to consider workplace investigation outsourcing by engaging independent third parties to maintain a level of impartiality and transparency. https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc5592.htm

 

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