Conducting Workplace Investigation
There may be times where a business is obliged to conduct a workplace investigation. An investigation can range from being informal and quick up, to a more formal and extensive one.
Businesses regularly investigate issues such as:
- complaints from employees about bullying, harassment and discrimination.
- misconduct that employees engage in which includes breaching workplace policy, aggressive behaviour, theft, misappropriation of funds, disorderly conduct, violence etc.
What Does A Workplace Investigation Involve?
The first step is to determine how serious the allegations are. The more serious the allegations, the more thorough and involved the process has to be.
For simpler allegations, it may involve a few meetings with the people involved and obtaining various documents.
For more involved and serious allegations, it might be appropriate to appoint an independent person, such as one of the lawyers at MKI Legal, to conduct the investigation. The team at MKI Legal can:
- interview all the witnesses,
- obtain witness statements from each of witness,
- review the documentary evidence, and
- prepare a report based on our findings with recommendations of next steps.
A report will usually include an opinion as to whether the allegations have been substantiated or unsubstantiated.
Having a lawyer conduct the investigation means you can maintain legal professional privilege - which means the privileged communications do not need to be revealed to the court if there is a dispute later on.
During the investigation process, the business has the option to separate the employees involved and even stand down employees (generally with pay) while the investigation is ongoing.
It is important to secure the integrity of evidence early on, to ensure that documents, computer systems and records are not tampered with.
Do Employees Have To Cooperate With Workplace Investigations?
The short answer is yes. Employers have the power to give lawful and reasonable instructions to employees.
This is a broad power and can include directing employees to give an account of their version of events, to answer questions, and provide access to work records.
This is normally done during work hours and the employee is entitled to be paid for their time.
If an employee refuses to cooperate with an investigation, that could amount to serious misconduct and the business may be entitled to take disciplinary action against the employee including termination of employment.
Standard Of Proof For Workplace Investigations
The standard of proof is on the “balance of probabilities”. This means that something is more likely than not to have happened.
In criminal cases, there is a higher standard of proof called “beyond reasonable doubt”. The balance of probabilities is a lower standard than this.
In order to avoid potential unfair dismissal or general protections claims, the business should act reasonably in conducting the investigation and reaching their conclusion. If there is no evidence to support an allegation, it would be unreasonable for the business to reach a conclusion that the allegation was substantiated.
However, if an employee disputes the finding of the investigation, it is ultimately up to the courts and the Fair Work Commission to decide whether the conduct has occurred or not.
Conducting a proper investigation can help a business successfully defend a general protections or unfair dismissal claim.
Who Conducts Workplace Investigations?
An investigation can be conducted by the business including human resource staff, managers, directors and the owners or an investigation can be conducted by an outside professional such as a law firm who has experience in conducting these matters. It is often recommended to get an outside professional to conduct the investigation if there are serious allegations or if there would be a potential conflict in internal staff investigating it.
When Should An Incident Be Investigated?
Generally, an investigation occurs when a complaint is made by staff. Not every complaint will warrant an investigation. Sometimes complaints can be resolved quickly and informally.
However, generally more serious allegations, such as allegations of bullying, harassment, sexual discrimination will generally require an investigation of some sort to occur.
How Can MKI Legal Assist?
We can provide as little or as much help to your business as needed.
We can either:
- work in the background to help you conduct the investigation yourself in a lawful and reasonable manner, or
- we can undertake the entire process from start to finish.
Contact us today to have a confidential no-obligation discussion about your situation.