Most common and avoidable mistakes made during workplace investigations

09 August 2021

Accusations of wrongdoing are common in the workplace. Unfortunately, investigations by managers and HR professionals are bungled just as often.

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The Victorian Chamber’s Workplace Relations team are often called by businesses only once the proverbial has already hit the fan. We often hear how accusations were made, investigations proceeded, action was taken, now the business is in legal strife. It is a frighteningly common tale. 

While the Victorian Chamber Workplace Relations Advice Line is open to take your call about your specific circumstances, here are the most common mistakes made by managers and HR professionals in businesses of all sizes, and across all industries: 

#1: Vague allegations  

 Carefully crafted allegations are the making of a successful investigation. Getting the process wrong can result in a lot of time and effort wasted. 

Allegations should be precise and specific. This means before you can draft allegations, you will need to make enquiries – that usually means interviewing the complainant, preparing a record of interview, and reviewing any evidence available.  Include time, dates, places.  Be explicitly clear about what is alleged to have happened.  Fail here, there is no coming back.  

#2: Failing to test the evidence 

A good workplace investigator prepares for an interview, but is also agile. Be prepared to adapt questions and lines of enquiry to ensure no stone is left unturned. 

It usually isn’t enough to put an allegation to a participant. An investigator needs to test the evidence.  This means you will need to put competing evidence to the participant and ask them to explain the difference, then highlighting any gaps or contradictions.   

#3: The Briginshaw principle 

Are you familiar with the Briginshaw principle? If your answer is ‘no’, seek professional advice immediately. 

In a nutshell, The Briginshaw principle outlines the standard and onus of proof you will need before you are able to make a finding of fact to substantiate an allegation. Without meeting this standard, you may be exposing your business to major legal issues. 

#4: Promises, delays and gossip 

It’s important for any investigator to be clear and transparent about the process and timelines. Making guesses are often promises you can’t keep. Investigations are often delayed, and that is fine, but it means the investigator needs to be upfront about those events (and keep records).  

The Investigator also needs to remind themselves: they are there to investigate, and they are not there to take sides, pre-judge, or to sympathise. An investigator needs to set the ground rules - that includes making sure all participants understand the need for confidentiality.   

Getting either of these things wrong doesn’t just undermine the investigation, it is going to have a lasting effect where employees will lose trust in the process and be reluctant to raise future issues. 

#5: More haste, less speed 

All too often Directors, Managers and HR professionals panic at the sight of a complaint and frantically start investigating it. Yes, action needs to be taken, but it’s important to stop, take stock and consider if an investigation appropriate. 

Take a moment to ask: 

  • Who is an appropriate investigator?  
  • What evidence exists?  
  • Who will be involved in the investigation? 
  • Once the investigation is completed, if we need to move to a disciplinary process, who will be responsible for that process? 

Glossing over these fundamental considerations may result in your investigation being flawed or a complete waste of time. 

How we can help  

The Victorian Chamber Workplace Relations Consultants have a wealth of experience conducting workplace investigations and providing advice and support to business considering disciplinary outcomes.    

The Workplace Relations Advice Line offers general advice on a range of workplace issues, including:  

  • Award interpretation, classification and minimum entitlements;  
  • Disciplinary processes, performance management and termination;  
  • Personal illness and injury;  
  • Parental leave and flexible working arrangements;  
  • Redundancy;  
  • Occupational Health and Safety and WorkCover.  

For assistance with any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on (03) 8662 5222. 

Workplace relations advice

Resolve HR & workplace relations matters with our help. Call the advice line during business hours.