Conducting workplace investigations - A five-step plan

We would like to acknowledge the contribution of Associate Emily McGregor to this article.

A key area of our practice involves conducting, or assisting our clients to conduct, workplace investigations.

While the subject matter varies between each investigation - from bullying or harassment to investigations involving conflict of interest allegations and everything in between - there are a number of key steps that should be followed to help create a best practice workplace investigation process.

This is the five-step plan we suggest to promote an accurate, reliable and procedurally fair workplace investigation.

In this article:

• the term ‘investigation’ means ‘workplace investigation’, and
• we use the words ‘complaint’ and ‘grievance’ to reference the issue raised by a complainant. Both terms are correct, however an employer should use the wording referenced in the employer’s policy or procedure that provides the mechanism for an employee to raise a concern about an issue in the workplace.

STEP 1: Assessment

The first step arises following the receipt of a complaint.

When this occurs, an employer should always acknowledge receipt of the complaint and ensure support, such as EAP, is offered to the complainant.

The organisation should then conduct an initial assessment of the grievance to determine the severity of the issues raised. The primary purpose of this assessment is to determine whether conducting an investigation is a necessary and proportionate response to the grievance.

Complaints can generally be categorised into three levels:

1. A low-level grievance that can be informally managed.  An example could be a miscommunication between team members.
2. A mid-level grievance that could be informally mediated or may warrant a disciplinary response but likely not an investigation. An example could be a singular instance of a harsh tone being used in a team meeting.
3. A formal grievance or a complaint that should be formally investigated. Circumstances that could warrant a formal investigations could include instances where there is a pattern of concerning behaviour, the report of a workplace health and safety risk, or the complaint involves allegations of bullying or sexual harassment, or which otherwise has the potential to adversely affect the employer’s workforce, business or reputation.

Once the severity of the grievance is understood, and noting we appreciate that this is sometimes hard to accurately assess, the organisation should consider if any immediate actions should be implemented for the intervening period whilst the investigation is being conducted. This may include directions to the complainant and/or respondents to move physical locations within an office, work from home, move teams or be stood down pending the conclusion of the investigation. 

As part of the initial assessment it is useful to consider the complainant’s goal in making the complaint. This can assist in resetting working relationships moving forward, and guide any adjustments that may be implemented. Importantly, even where a complainant may not want their grievance investigated, where there is a risk related to safety including in relation to sexual harassment or misconduct, an investigation may still be required to comply with an organisation’s legal duties.

At the initial assessment stage, consideration must be had to the organisation’s policies and procedures in relation to workplace grievances and formal investigations to ensure these are followed. However, adopting a trauma-informed approach, being flexible and making reasonable adjustments where appropriate can also be important, particularly in cases involving vulnerable persons (such as people with a disability, those with mental health concerns, young people, people experiencing trauma or people for whom English is a second language).

If the assessment results in a conclusion that an investigation is warranted, the context, severity, potential implications of the grievance and whether the organisation has the resources to conduct an investigation, should inform a decision as to whether it should be conducted internally or externally.

Key point: not every complaint needs to be investigated, but where an investigation is warranted, it must be conducted fairly to ensure a reliable outcome.

STEP 2: Allegations

The second step deals with the scope of an investigation, and in this regard the allegations are arguably the most important part of an investigation. Put simply, the allegations set out the ‘who’, ‘what’, ‘when’, and ‘where’ details that support the grievance.

Allegations should then be provided to the respondent in clear and unambiguous language, with as much detail as is available from the grievance. In conducting a procedurally fair investigation, the respondent must have sufficient detail to enable them to understand the allegation, and therefore be in a position to provide a response.

The investigator should be able to read and understand the allegations and have certainty as to what the key issues are that underpin those allegations. If they are unable to do so, they should find the gap as to why not, and ensure that additional detail is provided.

Allegations should be free from emotion and subjectivity. For example, the fact that someone was angry or upset as a result of the alleged conduct is irrelevant in terms of the allegations; the role of an investigator is not to make findings in relation to a respondent’s feelings or emotions.

Where the alleged conduct could potentially result in a breach of an organisation’s policy or procedures, including a Code of Conduct, the specific section that the conduct may be a breach of should be set out.

Key point: focus on the ‘who’, ‘what’, ‘when’, ‘where’ facts – and establish clear objective allegations that directly link to the relevant policy.

STEP 3: Evidence

Evidence in workplace investigations is usually direct evidence from a complainant, respondent and relevant witnesses.  It can also include documentary evidence such as emails, text messages, social media, policies, or these days, often recordings of meetings, including recordings obtained without consent (and therefore potentially unlawfully obtained).

As part of agreeing to participate in an investigation, participants should understand and agree to the format in which they will provide their information, how that will be recorded and stored, and whether they will be provided with copies. It is also integral that the importance of confidentiality is explained and maintained throughout the course of the investigation.

All participants should be given the opportunity to have an appropriate support person present for any interviews conducted, with the caveat that the support person should not be involved in the allegations or the investigation, and must also agree to the confidentiality provisions being imposed by the employer.

It may be the case that the respondent chooses not to participate in an investigation. This reluctance should not be inferred as guilt. Many respondents are shocked upon receipt of allegations and some, whilst usually not intentional, lack insight into the impact of their actions.

Alternatively, participants to an investigation can be or become medically unwell throughout the process. This can result in a pause in investigation process, or an alteration of the initial plan. Should this occur, obtaining medical evidence as to their capacity, or lack thereof, to participate in the process, and providing appropriate and reasonable adjustments (such as additional time or responses in writing rather than through interview) can keep the investigation moving forward.

In these circumstances it is important to balance the interests of other participants who are also seeking resolution of the grievance in a timely manner.  

Key point: as this is each investigation participant’s chance to be heard in relation to the alleged conduct, remember to:

• establish rapport and provide referrals for support
• ask open ended questions
• remain neutral and objective, and
• reiterate confidentiality obligations.

STEP 4: Findings

Once an organisation has obtained all of the available evidence, it is then time to consider and evaluate this material against the original allegations.

Findings should be made firstly in relation to the factual circumstances, and then secondly in relation to the breach/misconduct alleged.  

The options available (subject to any relevant policy or procedure) are that each allegation is substantiated, partially substantiated or not substantiated factually, and then substantiated, partially substantiated or not substantiated as a breach or misconduct.

Where an allegation has been unsubstantiated factually (i.e. the alleged conduct did not occur), there is no need to make a finding about whether the alleged conduct is therefore a breach or misconduct in the circumstances.

In order to determine whether the facts set out in the allegations have been substantiated, the civil standard of proof, namely the ‘balance of probabilities’, is generally applied as the appropriate standard of proof. Meeting this standard involves a comparison of disputed facts to determine what is more likely to have occurred. A fact is proved to be true, on the balance of probabilities, if its existence is more probable than not.

The seriousness of the allegations made, the inherent unlikelihood of an occurrence of an incident or a given description, or the gravity of the consequences flowing from a particular finding, are all relevant to assessing whether this standard has been met.

That is, the seriousness of the facts surrounding the allegations, and the consequences of its substantiation, affects the level of satisfaction required to satisfy the ‘balance of probabilities’. This is referred to as the Briginshaw standard.

Importantly, where an allegation is not substantiated, this does not necessarily equate to a conclusion that the allegation is made vexatiously or without any foundation. Rather, it indicates that, on the evidence available, it could not be determined (in accordance with the balance of probabilities) that the allegation was substantiated.

Key point: a fact is proved to be true, on the balance of probabilities, if its existence is more probable than not.

STEP 5: Communication

Once findings have been made, these should be communicated to the decision maker. The decision maker is usually someone external to the investigation who reviews the investigation report prepared and considers the appropriate outcomes.

All participants to the investigation should be notified of its conclusion. The respondent and complainant should also be notified of the findings of the investigation. However, they are generally not entitled to receive a copy of the investigation report, for reasons including to maintain the privacy of other participants. Additional considerations can also apply here, including the need to maintain legal professional privilege if the investigation was conducted externally by legal professionals.

Depending on an organisation’s disciplinary policies and procedures, outcomes to an investigation available to a decision maker may include:

1. training courses or coaching on communication and leadership
2. performance improvement plans
3. written warnings, including first and final warnings, or
4. termination of employment (including, should the findings amount to serious misconduct, without notice).

Details of any disciplinary action taken against a respondent as a result of the investigation would generally not be communicated to the complainant. Rather, an employer could confirm that appropriate and proportionate action has been taken against the respondent.

Depending on the outcome of the investigation, this part of the process can be difficult for both respondents and complainants . Feelings of frustration at the process, or the result, from either side are common. Communication should be clear, timely and provided sensitively. We often suggest outcomes are provided in multiple ways (i.e. in a meeting and in writing), and with a trauma-informed approach were appropriate.

It is also important as an organisation to support participants to an investigation to move forward post-investigation. This may involve facilitated meetings to reset relationships, restructuring reporting lines, setting communication guidelines, or further adjustments that may be implemented to support safe and productive working relationships.

Key point: the investigation report should generally not be provided to participants. However, communication of outcomes of the investigation should be done in a sensitive and timely manner.