An employer may need to consider investigating an issue, for example, if there may have been misconduct or serious misconduct, or a complaint of bullying or harassment has been made. Investigations have a number of steps and decisions to be made. Employers will need to balance:
- advising an employee that the employer has a concern or suspicion (an allegation) or that another employee has raised a concern or suspicion in relation to something done, or not done, by the employee, and
- unnecessarily raising something that may not be a real issue, causing stress to the employee. Also there are times when an employer does not know who did the act that has resulted in the concern, for example, who took the missing money.
Before taking any disciplinary action or responding to a complaint made by an employee of, for example, theft, bullying, harassment, discrimination; an employer should get as many facts together as they can. This is the investigation process. An investigation may be quite simple or it may be complex and include looking at documents, data and interviewing other people (witnesses) who saw or heard the act or behaviour etc. Often situations will need a specific approach.
Principles for investigations
Investigations must be done in good faith and use natural justice principles. This includes not jumping to conclusions before going through the process. A test for this is ‘what a fair and reasonable employer could have done’.
Key elements of a fair investigation
These will vary based on the facts. However, the basics are that:
- an employee should be told details of the allegations - getting the timing right for this can be challenging. You need to have enough information to feel confident that you have an issue, without effectively undertaking a full investigation before you advise the employee. Usually, once an employer feels that there is an issue to be answered, it is appropriate to put this to the employee and advise that an investigation will be undertaken. However, in some situations, eg where there is information that could be destroyed or people threatened, you may want to have these matters resolved before having a conversation with the employee.
- an employee should be given a reasonable opportunity to respond.
- any explanations should be fully considered before conclusions are made.
An investigation’s purpose is to establish the facts; it’s not to make or influence the decision on any action to be taken.
Investigations can be time consuming and sometimes expensive. Deciding the best approach can be challenging for any organisation. It is not a requirement to use an independent investigator (someone other than the manager who will make the final decision on any action to be taken), as long as the person who gathers the facts/does the investigation is neutral, doesn’t take sides, and considers all information in a balanced way. However using another manager, HR or someone external to gather the facts and present these in a balanced way is a useful process.
External or internal independent investigators
A larger organisation may be able to use their HR, Audit and Risk, or Health and Safety teams; this may not be possible for a small organisation. An organisation may choose to go external when an investigation involves:
- difficult or complex issues – eg a fraud or drugs allegation
- there is a risk of a toxic work environment – eg a complex bullying allegation
- sensitive allegations - eg sexual harassment allegation (often policies have time constraints on the follow-up process that need to be complied with)
- questions of credibility – eg when the allegation of inappropriate behaviour is made by a customer about a staff member (if an internal investigator is used it may create a perception that the investigation is biased)
- an organisation-wide issue – eg where there is money going missing , but there is no person identified as acting inappropriately, an investigator should look at all of the evidence and come to a conclusion based on the facts, with no bias.
Types of investigations, who should investigate
- Where possible independent – whether internal or external generally depends on the size and complexity of the issue.
- Is there a need for the decision-maker to be seen as independent; is it likely that there may be a concern as to bias? If this is likely, then it is a good idea, if possible, to use someone else to gather the facts of the issue. This person could be internal.
- What is required in terms of delegated authorities? If the workplace policy states that the person who gathers the information cannot be the decision-maker, then the roles will need to be separate.
- Best to be experienced and independent due to the need to be seen as unbiased and due to the sensitive nature, also these complaints are often complex and time consuming.
- An investigator from HR is an option.
- WorkSafe can investigate bullying complaints.
- This can be quite a specialist area and whether you go external will depend on the nature of the health and safety investigation – was it a serious harm incident?
- This may be an issue if there is high turnover or low employment satisfaction survey ratings; these investigations will often be undertaken by HR or someone external.
Prepare for the investigation
- Check the employment agreement and policies.
- Identify who you want to do the investigation.
- Plan the investigation and draft the terms of reference .
- When it is known who the investigation is about, share the draft terms of reference with these employees (and if there is someone who has made a complaint that affects them personally eg bullying, then share with them also) and get their feedback.
Terms of Reference
The Terms of Reference document is a roadmap for the investigation. It should:
- identify the matters to be investigated (and the limits of the investigation, including what is outside the scope of the investigation)
- set out the nature of the issues/allegations/complaint
- say who the investigator will be
- state what process will be followed (if using an independent investigator then the employer is still responsible for the investigation)
- refer to the relevant work rules, codes, policy and procedure
- where possible identify who should be interviewed – the list of who should be interviewed may change as the interview progresses
- give timeframes (likely to shift)
- set out that the role of the investigator is not the same as the role of the decision-maker – this is to make it clear that the investigator’s role is to determine the facts, not decide any disciplinary outcome
- make it clear that anyone can have a support person or representative in interviews at any time in the process
- set out what the report at the end of the process will contain
- advise who the draft report will be given to for comment, prior to finalising
- advise who the sponsor or manager responsible is and who the contact person is.
The draft terms of reference should be given to the complainant and any employees whose conduct is under investigation for any feedback before finalising.
- Witnesses are other people who saw the act or behaviour and/or have direct knowledge or experience of the act or behaviour that has been said to have happened.
- Employees are entitled to know the identity of witnesses so they can to respond them fully (fair process).
- Witnesses should not be anonymous or be able to make off the record comments.
- Witnesses should be told that the information they give will be confidential to the investigation, but that the person whose conduct is under investigation will be given the notes/summary of meeting notes and this will identify them.
- In very rare cases it may be acceptable for witnesses to be anonymous, but there needs to be a good reason for this and enough information, without identification, for the employee to give a reasonable response. It would be a good idea to get expert advice if you are considering this.
- Identify the people to interview – think about how wide you need to go. Try not to make the investigation wider than is needed while making sure that you do not leave important questions unanswered.
- Be clear with the person being interviewed what the purpose of the interview is and what the information will be used for.
- Ask open-ended questions and follow up with clarifying questions.
- Record the interview – this can be done electronically (only if you get permission from the person being recorded) or by taking notes, or a mixture of these.
- Confirm the meeting notes back with the witness before you give these to the employee concerned.
Interview the employee concerned
- Provide all documents and summaries of what the other people interviewed (witnesses) said in advance.
- Invite the employee to have a representative.
- Record (with permission) or take notes of the interview.
- Request comments and confirmation of notes.
- Follow up with further questions if needed.
The report should:
- contain findings- a careful balanced assessment of what has been learned and whether the allegation(s) are more likely to have been true than not
- address each concern or issue raised
- contain the thinking/reasons for the findings and it should keep emotions or moral judgements out of the process
- have a clear link/reference back from the findings to the evidence
- be provided to the employee for comment (and may need to be provided to the complainant – refer terms of reference) being finalised
- not contain a decision or recommendation on the disciplinary action to take.
Things to remember
- When interviewing don’t talk too much – use who, what, when, how and why questions, and then listen.
- Don’t end the interview just because you have no more questions – at the end of an interview ask if there is anything they want to ask or tell you or think you should know.
- Be sure that the investigation supports the report findings.
- Be careful to put all the information you have relied on in the report.
- Take careful meeting notes.
- Do not have ‘off the record’ conversations.
- Don’t talk to people about potential findings while you are investigating.
- Do not ignore facts because they are inconsistent with other information.
- It is important that the report is complete, fair and neutral, don't rush the process.