Workplace Investigation Process

Workplace Investigation Process – A workplace investigation is an independent inquiry into complaints and allegations made about an employee’s conduct or behaviour. It is recommended that workplace investigation is conducted when, if the complaint/s are proven the outcome could lead to disciplinary action especially in the case of termination of employment.

It is recommended that workplace investigation is conducted when, if the complaints if proven it could lead to the identification of a breach of the employers duty of care under work, health and safety legislation – or potential action under Fair Work Anti Bullying legislation – Details here

For assistance with the investigation of workplace issues please contact us – enquiries@awpti.com.au or on 0409 078322

As part of the Workplace Investigation Process AWPTI will conduct what is known as a ‘fact-finding’ investigation, during which the investigator collects information and will examine that information to determine it’s value as evidence and then make a finding about whether or not the allegation/s can proven (substantiated).

We will then provide that report to our client (the employer) and also if required make recommendations in relation to potential outcomes.

Workplace Investigations require the use of the standard of proof known as the balance of probabilities. The term balance of probabilities is frequently referred to as being more likely than not.

Workplace Investigation Process – What happens step by step

• We request a letter of engagement and Terms of Reference outlining the scope of the investigation – what do you want us to do?
• We ask you to provide us with as much detail of the complaint/s as are available at the time including letter/s of complaint, emails and any other documents including files notes, photographs, text messages and computer records.
• We ask you to provide us with copies of your behavioural polices and/or Code of Conduct.
• We will advise the best course of action after analysing the complaint.
• We will provide you with an Initial Investigation Plan and Cost Estimate based on the information you have provided to us.  As the investigation processes we will update the plan and cost estimate if things change that will affect the overall investigation in time and cost.
• We will provide you with letters to advise the parties involved (complainant, respondent and maybe witnesses) of the investigation.
• We will work with you to organise a time and location for us to interview the complainant and witnesses. In most case we will come to your venue.  If any of the parties do not wish to be interviewed on-site we will organise a suitable venue.
• We will Interview the complainant.
• We will Interview witnesses.
• We will  collect and review any other evidence as required.
• We will formulate allegations based on the complaint and interviews and advise the respondent in writing.
• We will interview the respondent – to obtain the respondent’s version of events.
• We will interview any witnesses nominated by the respondent if required.
• We will  then evaluate all of the evidence.
• We will make any other enquires as deemed necessary.
• We will provide you with a report based on the requirements of your Terms of Reference.  We may provide a factual report only that  includes findings and we may also make recommendations if required.
• We are happy to meet with you to discuss the report and outcome of the investigation.
• At times if requested, we will meeting with the complainant/s and/or respondent to discuss outcome of the investigation.

Workplace Investigation Process – The interview what happens?

The interview is the opportunity for all parties to provide information in regard to the issues that were raised. To ensure accurate note taking, we digitally record our interviews and a copy of the transcript is provided to interviewees as soon as it is available.

As part of the process, the interviewees may identify potential witnesses for possible interviewing in relation to the investigation.

We always advise that investigation matters are confidential. Interviewees are asked to maintain the strictest confidentiality regarding the matter and are asked not to speak with any staff members regarding the matter (unless that person will be a support person at the interview) and in particular, they are asked not to approach in any way whatsoever (in person, by letter, e-mail, telephone etc) any person whom you believe may also be involved in this matter. This request is to ensure procedural fairness applies to the proceedings and to all involved in the matter.

Procedural Fairness

A workplace investigation requires that we ensure that the complainant and the respondent are afforded procedural fairness. It is generally accepted that procedural fairness requires:

• That the respondent must be provided details of the allegations made against them.
• That the respondent must be given sufficient information and time to consider the allegations and an opportunity to respond to those allegations.
• Any investigation findings must be based on the evidence only.
• The final decision in relation to the employees’ future is made by an unbiased and independent person.
• In the cases of a potential for disciplinary action, the respondent should be given the opportunity of have a support present present during the interview.

Our procedure is to offer all interviewees, complainants, witnesses and respondents the opportunity to have a support person present during any interview.

For more information on the Support Person – https://awpti.com.au/2017/10/10/workplace-investigation-support-person/

Workplace Investigation Process – Common terms

• Complainant – The person making the complaint
• Respondent – The person who is the subject of the complaint and/or being investigated
• Witness  – A person of interest who may have observed an interaction or who can provide information
• Allegation – A claim or assertion that someone has done something wrong or may be in breaches of a workplace policy.
• Fair Work Commission or FWC –  Australia’s national workplace relations tribunal. The FWC is an independent body with power to carry out a range of functions.
• Workplace Bullying –  Any behaviour that is repeated, systematic and directed towards an employee or group of employees that a reasonable person, having regard to the circumstances, would expect to victimise, humiliate, undermine or threaten and which creates a risk to health and safety – Fair Work Act section 789FD
• Reasonable Management Action – ‘Behaviour will not be considered bullying if it is reasonable management action carried out in a reasonable manner.- Fair Work Act s789FD (2)

Engage an expert or do it your self?

When consider if you should engaging an expert or do it yourself I suggest you have a read of the information here – https://awpti.com.au/workplace-investigations/  and also what The Fair Work Commission said in the case of, Xiaoli Cao v Metro Assist Inc; Rita Wilkinson [2016] FWC 5592  about outsourcing workplace investigations.

If you do wish to do it yourself we highly recommend workplace investigation training – https://awpti.com.au/workplace-investigation-training/   Contact us for details enquiries@awpti.com.au

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations