How to Conduct a Workplace Investigation Part 2

In my previous blog post I discussed the factors to consider when outsourcing an investigation, or when deciding to conduct the process internally. I also highlighted the need to establish the scope of the investigation and specific allegations prior to commencing the process. So what happens next?

 The Role of the Investigator

Regardless of whether the investigation is internal or external, the role of the Investigator remains the same – to gather sufficient evidence regarding the particular matter so that they can make a determination on what actually occurred.

The Investigator will gather information from a number of sources including interviews with witnesses as well as reviewing relevant documentation such as emails, notes and letters etc. The Investigator will interview the person bringing the complaint as well as the person who is the subject of the allegations.

It is the role of the Investigator to extract as much information as possible regarding the matter under investigation using a range of skills and techniques. This is much more than simply conducting a few interviews. The best Investigators will get to the heart of the matter quickly and effectively, and be able to navigate their way through everything else that typically surrounds an investigation.

Sometimes the Investigator will be asked to make findings on a matter (ie whether the complaint is substantiated or not) and may also be asked to make recommendations to the employer. Investigators will not usually make recommendations regarding disciplinary action against an employee, as this really is the responsibility of the employer.

 The Burden of Proof

Unless the investigation is conducted by the Police in relation to a criminal act, a workplace matter is subject to the burden of proof applied in any civil case. This burden of proof is referred to as the Balance of Probabilities and is a lesser standard that the standard applied in criminal cases.

In considering the allegations against an employee, the Investigator will assess the evidence and make a determination based on the likelihood or probability that a particular event took place or not. In other words, if the Investigator believes that the allegations are more likely than not to have occurred, the complaint will be substantiated. The more serious the matter, the more stringent this burden of proof becomes.

 The Investigation Report

At the conclusion of the investigation, the employer will be provided with a report that includes a detailed assessment of the evidence, as well as a determination or finding. If done well, the investigation report should include all the necessary information for the employer to comfortably make a decision about how to deal with the matter. It should answer all the questions an employer may have and leave them with no doubt about next steps.

Following the Investigation

In many ways the investigation itself can be the easiest part of a complaint process. Often, the challenge for employers comes after the investigation is complete and they are required to communicate findings and outcomes.  Regardless of the outcome, employers should be mindful of the impact that any investigation may have on relationships between employees, as well as the perception of others within the workplace. Employers will be judged harshly on how well they are seen to manage complaints in the workplace, and how they deal with the outcomes of an investigation.

 

 

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