Workplace Investigation Interview failure

Workplace Investigation Interview failure – In a recent article I spoke about the common failures I see in workplace investigations – The article is here

It is vitally important to remember that in workplace investigations into any form of  misconduct of any sort including behavioural issues such as bullying, harassment, sexual harassment or discrimination it is critical for the investigator to  ‘get it right the first time every time’ 

The interviews are a vital part of the evidence gathering phase of an investigation.  The interview is where the investigator gathers the evidence from the complainant/s and witnesses and test the evidence during the respondent interview.  The failure of the interview can derail the entire investigation and lead to flawed findings.

Here are some of reason for Workplace Investigation Interviews failure.

1. Poor investigation planning caused by a flawed complaint analysis

Prior to any interview it is important to have a basic plan that includes:

• The incident/complaints that you want to ask about
• Specifics from the complaint

Investigators should avoid detailed planning to many specific questions. Invariably the answers you get are not what you plan for. Interviews are meant to be fluid conversations that facilitate probing based on a person’s prior responses.

Effective planning considers the background information that you may want to know about relationships, knowledge of policies, training, and culture in a workplace amongst other things

Factors to include in planning an interview:

• Type and purpose of interview/investigation
• Concerns of the interviewee
• Rights of the person interviewed
• Do they have to answer the questions?
• Can they have a support person?
• Have they had long enough to consider implications?
• What are the key background questions?
• What are the specific events you know about?
• Identify key topics to probe
• Organise the evidence you already have
• List things to be explained at the start
• Consider introductory open questions

Other factors

• Topic identification
• Free recall of each topic/allegation
• Probing of each topic/allegation
• Checking / clarification of each topic
• Questions specific to the investigation
• Additional submissions

2. Failure to establish the why we are here.

It is important for the interviewee to understand why they are at the interview, what the purpose of the interview is to answer any questions they have before you start.  This is also about rapport building.

Establishing to the why and what will help to put the interviewee at ease and allow the interview to flow.

3. Talking too much

Remember you are here to gather evidence based on what the interviewee tells you, not the other way around.  As an approximate, a recorded interview should be 75-80% them talking and 20-25% you.

You are here to listen

4. Not listening

The interview should be organic based on what the interviewee tells you.  If you are not listening carefully you might;

• Miss vital evidence
• Repeat questions that the interviewee has already answered this may lead to to;
  • The interviewee seeing that you are not listening
  • The interviewee forming the opinion that you don’t care about what they are saying
  • The interviewee become frustrated with the interview
  • The interviewee doubting your ability as an investigator
  • The interviewee losing faith in the process

You don’t want to hear, “I’ve already answered that” or “Why are you answering me questions that I have answered’.

If the question has not been satisfactorily answered, re-frame the question or ask the person to clarify their answer.

LISTEN TO UNDERSTAND NOT JUST TO REPLY OR TO ASK YOUR NEXT QUESTION

5. Rushing the interview

Take your time, an interview should not be rushed as it will become obvious to the interviewee if you are in a hurry.  It is part of good planning to allow sufficient time.

6. Interrupting the interviewee

This is a biggie and a very common mistake especially among inexperienced or untrained investigators.

It is very important to allow the interviewee to talk, to tell their story. Often they have not been able to do this and your interview may be their first opportunity to get it off their chest.

Not interrupting the interviewee is as important as careful listening.

Interrupting may give the interviewee the impression that you are not interested in what they have to say, this may result in them shutting down.

I always say this to interviewees, “This is your interview, you can tell me as much or a little as you want.  I may guide the interview and ask you questions but it’s up to you want you tell me.”

7. Taking the wrong approach

A workplace interview is not an interrogation.  It is a collaborative process.

• Do not make assumptions of the interviewee or the subject matter
• Do not pre-judge the outcome of the interview.

One method of investigative interviewing, known as the PEACE model, assumes that a relaxed subject, with whom the interviewer has rapport, is more likely to cooperate. Not to mention that it’s far pleasant for both parties if the atmosphere isn’t charged with aggression and intimidation

PEACE is a non-accusatory, information gathering approach to investigative interviewing, the PEACE model is considered to be best practice and is suitable for any type of interviewee, complainant and witness or respondent.

8. The questions you ask and failure to understand the rules of evidence.

The questions you ask must be admissible if the matter process to a court.

It is recommended that you start with open questions to encourage free recall, such as;

“Can you tell me about what happened in the meeting on the 1oth”
“Can you tell me about the meeting on the 10th”

Or one I like to use at the start of an interview;
“Can you tell me what brought you to make this complaint”

If answers are avoided, you can go to a closed question, that will usually get a Yes or No answer for example;

“Were you in the meeting on the 1oth”…Answer “Yes.”

Go back to your open question.

Things to be avoided;

• Leading questions
• Suggestive questions
• Multiple questions
• Repetitive questions
• Statement and your opinions

9. Your method of recording.

How you choose to record an interview is a matter for yourself.  My preferred and I would argue the best method is an audio recording if in person or audio/video interview if the interview is conducted remotely via Zoom or Teams.

Recording using this method ensures the following;

• You record everything the interviewee says exactly how they say it, not to the best of your note taking or recollection
• You have more freedom to listen and take notes without having to try to get down everything they are saying
• When you are drafting your report you have an accurate record by way of a typed transcript more best practice in my opinion.

Be mindful of laws relating to recording interview that may differ dependent on location and jurisdiction.

10. Interviewer bias

You should approach every interview with an open mind and never make any prejudgements as to;

• The interviewee
• The importance of the interviewee’s information
• The outcome of the interview

Common examples of interviewer bias are;

• Confirmation bias – only seeking out evidence information that supports one position or idea
• Halo effect – How your view of the person effects how you feel about his/her character
• Self serving – Taking the path of least resistance
• Stereotyping – Making an irrelevant judgment on the person

Any of these failures can derail the interview and the entire investigation.  They could also lead to claims that you have failure to provide a respondent with procedural fairness.

You cannot hope to provide an effective investigation report if the interviews are flawed.

Advice for employers and organisations to avoid Workplace Investigation Interview Failure

It is often considered that a  workplace investigation is a simple process, it is not. People lives and the organisational reputation can be one the line.

When faced with complaints employers and organisations should consider the following when investigation interviews are required;

• Do we have someone with the necessary expertise to conduct an effective interview?
• Do we have someone with sufficient experience in conducting an investigation interview?
• 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 does the person/s nominated:

• Have solid experience conducting investigative interviews?
• Have a full understanding of the rules of evidence?
• Have an understanding of procedural fairness?
• 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.

Poorly conducted interviews can make things much worse

How AWPTI can help you avoid Workplace Investigation Interview Failure

AWPTI can provide workplace investigation training to ensure that you get it right the first time every time.

Courses include:

Conducting Workplace Investigations – Full course  – Highly recommended for organisations charged at a flat rate with no limit on attendees

Investigation sexual harassment 

Conducting Workplace Investigations- Basic courses

Conducting Workplace Investigation Open course This is is open an anyone, you do not have to be part of an organisation

More courses can be found at www.awpti.com.au

All course except the open course can be provide live by request, which means at a time and date to suit your requirements and can be provide in person or remotely via Zoom or Teams

AWPTI can also provide full investigations services – https://awpti.com.au/awpti-workplace-investigations/

AWPTI – workplace investigation based in Sydney, conducting workplace investigations nationwide including Queensland, Victoria and South Australia, Western Australia, the ACT/Canberra, Northern Territory and Tasmania.

Workplace training national wide and internationally

Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations