Conducting an investigation can be a daunting and overwhelming process for a business. Here are our top tips on managing an investigation following a complaint with as little risk as possible.

As an overarching point, adherence to an organisation’s own policies and procedures is a fundamental requirement. The following is a guideline and assumes that there is not a conflicting policy that requires an organisation to proceed differently.

1. Unpack the complaint and plan

Once a grievance or complaint has been raised by an employee, interview that person first to fully understand the nature of the complaint. Where the complaint amounts to an allegation of misconduct by another employee, the allegations can often be put to that person. Other available evidence can be reviewed to test some aspects of the complaint (for example timesheets or rosters).

In following this process, an employee may admit to some or all the allegations or provide a satisfactory explanation. This approach can ensure a clear finding and a plan for the matters that remain in dispute, including interviewing relevant witnesses. This approach helps reduce the time and emotional strain of a formal investigation, and only contested allegations need to be investigated further.

A business may also consider suspending employees pending the outcome of an investigation where appropriate. This is a protective measure for the individuals and process and requires consideration of several factors, including the severity of the allegations and safety of staff.

2. Appoint an independent investigator 

To mitigate the risk of an unfair dismissal claim and promote procedural fairness, consider appointing an independent investigator to handle the investigation, ensuring the process remains impartial and non-biased. Procedural fairness is supported by the investigator and decision maker being separate functions.

While some businesses will be able to meet this requirement internally, our Workplace Relations Consulting Team can also assist investigations as a neutral third party and can help you to navigate the process from start to finish.

3. Follow a procedurally fair process 

Ensure that an investigation follows a clear and transparent process. Lack of procedural fairness often hampers an internal investigation and can lead to unfair dismissal. The investigator must ensure that participants are given an opportunity to present their side of the story and respond to the allegations at hand.

An investigation should be timely and efficient. This is an important part of procedural fairness and may also minimise unrest in workplaces while matters are being resolved.

4. Carefully evaluate the evidence

If the matter progresses to a formal investigation process, the relevance of the evidence both ‘for’ and ‘against’ the allegation must be considered in making a finding about that allegation. If evidence is not gathered properly, it may need to be excluded.

It is also crucial to consider how much weight certain evidence should be given. This can range from hearsay and opinions of interviewees to tangible evidence such as records, emails, social media screenshots or CCTV surveillance. We recommend that you contact our Workplace Relations Advice Line for further assistance.

5. Determine the role of the decision maker

Once the evidence has been reviewed by the investigator, two criteria must be evaluated: whether there is a finding ‘as to the facts’ (whether, on the balance of probabilities, events did occur), and which workplace standard was breached (policy, code of conduct, employment contract etc.). Generally, the more serious the matter, the stronger the evidence should be.

The investigator should be separated from the decision maker in respect of final findings and employment outcomes. For the sake of procedural fairness, where an allegation is substantiated the respondent should be provided an opportunity to respond to the findings before a final conclusion is reached.

The same approach applies to considering disciplinary outcomes for substantiated allegations. Where dismissal is the proposed outcome, this is often known as a ‘show cause’ process.

Conclusion

By recognising the importance of these tips, a business is better equipped to defend an unfair dismissal claim by avoiding a flawed investigation process with incorrect procedures.

Seek further assistance from our Workplace Relations Team for support in managing the investigation process and reviewing business policies and internal processes.

Workplace Relations Advice Line

Trying to deal with workplace issues alone but don’t know where to start? Before you take any action, call our Workplace Relations Advice Line.

Our experienced team are here to give you over-the-phone advice about human resources or workplace relations issues. Our Employer members have free and unlimited access to expert advice through the Workplace Relations Advice Line.

Consulting and Training Support

With help from our Workplace Relations consultants, you can rest assured our expertise is on your side, including conducting independent investigations or providing training your teams to investigate effectively.