Workplace investigation failure

Workplace investigation failure – Recently I have conducted 3 investigation reviews and found the investigations to be flawed. Two were conducted by external investigators one conducted internally.

Two of the investigations related to sexual harassment complaints, the third was a bullying complaint.

The investigation reviews were conducted after the complainants had lodged further complaints in relation to the conduct and outcome of the investigations. In one case relating to a sexual harassment complaint, the complainant lodged a further complaint with the Australian Human Rights Commission.

It is important to note that complaints of sexual harassment can be lodged with the Australian Human Rights Commission and in some cases these complaints are lodged after an investigation where the complainant is not satisfied with the outcome. A complaint to the Australian Human Rights Commission in these circumstances may be unavoidable however it is important to ensure that the investigation and the findings of the investigation are sound and based on the evidence.

Upon review the issues that I detected in the investigations were;

• Poor interviewing of the complainant, witnesses and the respondent, I believe based on a flawed complaint analysis.
• Failure to identify and interview crucial witnesses.
• Ignoring or failing to identify important evidence for further inquiry
• Poorly drafted allegations
• Findings that was not supported by the evidence

A common flaw during the interviews with the complainant, witnesses and the respondent;

• The investigator/interviewer constantly interrupting the interviewee and not allowing them to provide their version of events/evidence, An interview where the interviewer talks more than the interviewee tends to be a flawed interview
• The investigator/interviewer asking leading questions an in one instance actually giving their opinion on the evidence being provided by the interview during the interview, appearing to show that the interviewer did not believe the compliant
• Showing apparent bias by way of appearing to have made their decision before gathering all of the evidence
• Failing to ask blatantly obvious questions, I believe this was due to a flawed complaint analysis

In one case involving a sexual harassment complaint it appeared that the investigator took an adversarial approach to the complainant appearing to cross examine and attempting to undermine her version of events without any actual basis to do so.

The outcome of each investigation was that there was insufficient evidence to substantiate the complaints.

Upon review of each investigation I found that I disagreed with the findings And recommended that the matters were re investigated.

At the start of an investigation the compliance version should be taken on face value, it may turn out that there is not sufficient evidence to support the complaint but this is for later on in the investigation the complainant should never feel that the investigator doesn’t believe them.

Being subjected to sexual harassment or bullying is traumatic, reporting sexual harassment and bullying further increases the trauma. Attending an interview with an investigator can create further trauma. It is the job of the investigator to do no more damage. The ability to do this comes from an understanding and or training in best practice person centred trauma informed investigation technique.

I have reviewed investigations where the investigator has definitely made matters worse

What caused the workplace investigations failure

A lack of experience on the part of the investigator

• Rushing the investigation
• Failing to consider all the evidence
• Making pre-determined findings
• Making findings to support the organisation/or bowing to pressure for a specific outcome – lack Of impartiality
• A lack of training and or understanding of best practise person centred/trauma informed investigation processes
• Failure to adhere to best practise person centred/trauma informed investigation processes
• The investigator making a finding that the allegation was unable to be substantiated without gathering and considering all of the evidence.
• In the case of the internal investigation the witness list was determined by the respondents manager and the investigator failed to push back an interview the witnesses that would deemed necessary.

When I asked why the organisation had selected the particular investigator or made the decision to conduct the investigation internally the response in each case was the cost.

The external investigators were cheaper, I suspect they went with cheapest quote they obtained, however the outcome was that they not only had to pay the initial external investigator but now they’re paying me for the investigation review and the conduct of the secondary investigation. A significant increase in the overall cost, but no doubt cheaper than defending legal action

Workplace investigation failure – Lessons for employers/organisations

When sourcing an external investigator do not base your decision on cost only.

I am well aware that I am expensive to engage and that there are a lot of other investigators who are cheaper some charging bargain basement rates, but remember the old saying “you get what you pay for”.

When engaging an external investigator I recommend the following;

• Engage someone who has proven expertise and experience investigating complex and serious matters.
• Check that the investigator is qualified and licenced.
• Ask questions about the investigators experience, past clients, types of matters that they have investigated in the past

Many HR consultants, law firms and I have even seen family therapists offering workplace investigations, all of these organisations might have skills within their areas of expertise however investigating workplace complaints is a specialist field, it is important to remember in a workplace investigation it is vitally important that you get it right the first time every time.

If you are considering using an internal investigator it is not always appropriate or effective for an investigation to be conducted internally. Circumstances where an employer should consider engaging an external investigator include, but are not limited to:

• Where a complaint is made against a senior employee.
• Where the employer does not have adequate resources to properly conduct the investigation internally, particularly if the complaint involves multiple parties, complex issues and/or someone with specialist skills is needed to investigate the complaint.
• Where there is a risk that the complaint cannot be objectively handled by an internal investigator due to a real or perceived conflict of interest.
• If the alleged behaviour or conduct is of a serious (or criminal) nature and the risk of litigation is high, or
• When legal professional privilege may be required over the investigation process.

When making that decision an employer must ask the following questions:

• Do we have someone with the necessary expertise to conduct an investigation/enquiry or dispute resolution intervention?
• Do we have someone with sufficient experience in conducting an investigation/enquiry or dispute resolution intervention?
• Do we have the time to handle this internally?
• Do we want the stress of handling this internally?

If the employer is going to conduct an internal investigation or enquiry does the person/s nominated:

• Has been trained in best practice workplace investigation techniques
• Have solid experience conducting investigative interviews?
• Have a full understanding of the rules of evidence?
• Have an understanding of procedural fairness?
• Have an understanding of current legislation as it relates to workplace complaints such as bullying, harassment and discrimination?
• Have experience conducting investigations and drafting reports that will withstand the scrutiny of a Court, an Industrial Commission or the Fair Work Commission?

A poorly conducted investigation can make things much worse

If in doubt engage an expert

Workplace investigation failure – How can AWPTI help?

We can provide full Investigation services details here.

We can provide training in best practise investigation technique to your HR professionals internally for organisations with multiple attendees details here

For Individuals details here

for more details contact me enquiries@awpti.com.au