Identifying when to conduct a virtual investigation

Matters requiring investigation can often present as reports of behaviour which conflicts with company policies or formal written and/or verbal complaints. Remote working has brought about new ways in which misconduct may occur. This could be insulting or inappropriate behaviour online, inappropriate release of confidential information, inappropriate use of company resources or holding secondary employment without approval. Reports or concerns about such behaviour will often trigger the need for an investigation which could lead to disciplinary action.

Investigations – the benefits of remote investigations

Under workplace laws, where an employer “has knowledge” of a risk to health and safety or possible breach of equal opportunity laws, it has an obligation to take “reasonable steps” to satisfy itself as to what has, or has not, happened. Reasonable steps may include informal enquiries, but in some cases a full and formal investigation will be appropriate.

The evidence to be considered may include witness accounts of virtual meetings, recordings of virtual meetings, email exchanges or other electronic communications, and other sources of data. Conducting the investigation remotely can mean such evidence is easier to procure due to increased flexibility of scheduling interviews. Remote investigations also have other benefits such as reduced travel time and the ability to conference many parties at one time.

The requirement for procedural fairness

The Fair Work Act 2009 (Cth) and well-established case law, requires employers to undertake a process which fairly and respectfully allows all parties to have their response heard and considered. At the outset, the investigator should plan the investigation with a view to ensure all parties have a reasonable opportunity to respond and access to a fair process. When conducting virtual investigations consider:

• The virtual platform being used: Familiarise yourself with the platform you have selected. This include any intricacies such as chat functions, recording capabilities and screen sharing options. Also, consider having a back-up platform to help mitigate unforeseen glitches;
• Timing: Plan the meeting for longer than anticipated to assist with delays due to the internet or other unforeseeable events; and
• Ensure meeting formalities are outlined and adhered to: This would replicate the formalities used in face-to-face meeting such as sending formal meeting invitations, making statements at the beginning of the conversation regarding privacy, confidentiality and the roles of the people in attendance.

Though the platform for conducting the investigation may be new, the framework for the investigation will generally remain the same. Investigations can take many turns which may be unforeseen. If you are unsure of how to approach an investigation, please contact the Workplace Relations Advice Line on (03) 8662 5222.

Consider using an impartial investigator

Investigations must be conducted by an impartial, objective and fair investigator. If there is any question around the independence of an internal investigator, consider instructing someone from outside the business to assist and uphold these principles. The Victorian Chamber Workplace Relations Consultants have the expertise to handle investigations according to Fair Work principles. We provide commercially focused services that can be customised to your business needs. For more information regarding this service please contact the Victorian Chamber Workplace Relations Advice Line on (03) 8662 5222.

Take the proactive approach

Despite the change in circumstances, businesses should still take reasonable and proactive steps to prevent misconduct in the workplace. This includes setting expectations in relation to behavioural standard when working from home. Reasonable steps can include: updating policies and procedures in particular the code of conduct, internet usage policy and the working from home policy; providing timely training to ensure employees understand the new modes of working including appropriate use of virtual platforms; reminding employees of any new behavioural expectations such as conduct on chat/messenger applications; and ensuring communication channels between staff and management remain open and easily accessible.

Being proactive also means keeping yourself informed, regularly checking in with employees and acting on complaints quickly.

How can the Victorian Chamber improve investigations?

Our Workplace Relations consultants have the expertise to handle investigations according to Fair Work principles. We provide commercially focused services that can be customised to your business needs. Our consultants:

• Manage and respond to employee grievances and complaints;
• Independently investigate allegations of inappropriate workplace behaviours;
• Identify and assess risk of poor workplace environment and incidents;
• Recommend actions as a consequence of the findings;
• Train managers and team leaders in conducting investigations; and
• Provide ongoing support to ensure that issues of concern are managed and your risk reduced.

Contact us

When you need support with workplace investigations, speak to our experienced team. Phone the Workplace Relations Advice Line on (03) 8662 5222 and ask to speak to our consultants.