Misconduct complaints or grievances can be challenging for many employers to deal with. What should you think about before deciding to investigate a complaint or allegations relating to employee misconduct?
1. Is an investigation necessary?
Before any other steps are taken, it is important to consider whether there are any internal policies or procedures that need to be followed when a grievance or allegation is raised. If your organisation has policies in place, they may specify how it will handle complaints or investigations relating to misconduct such as bullying, discrimination or other forms of inappropriate workplace behaviour. Although most policies are guidelines only (that is, they usually do not form part of the employment contract), they should be carefully followed so that all parties are clear about what to expect and there is no suggestion of “unfairness” to the employees concerned (for example, in proceedings in the Fair Work Commission claiming unfair dismissal or seeking “stop bullying” orders).
Where there is no policy or other requirement to formally investigate a complaint, you can make an assessment of the nature of the allegations or issues raised and the context in which they have come to light. For example, where the relevant employee has quickly admitted the misconduct, it is often unnecessary to conduct an investigation.
The seriousness of the alleged misconduct is an important factor. Consider whether the alleged conduct, if proven, would be unlawful or a potential breach of your organisation’s policies or procedures. If not, it may not be sufficiently serious to warrant an investigation. If the alleged conduct is serious, and the potential consequences for the employee are grave, the amount of evidence required to substantiate the allegations, on the balance of probabilities, will be more significant. A formal investigation may be necessary to gather the higher level of corroborating evidence for allegations of serious misconduct, which may lead to termination of employment.
The complexity of the allegations is also relevant. If there is a single, straightforward allegation involving one or two people, informal discussions with the relevant parties may be sufficient to determine what took place.
If the allegations are numerous or complex, with conflicting versions of events, a formal investigation may be the only way to obtain objective, reliable findings.
2. Could mediation be more appropriate than an investigation?
Investigations can be time-consuming and disruptive. Some complaints or grievances may be appropriate for other resolution processes, such as mediation, rather than an investigation. Workplace mediation is a confidential process in which an independent third party, a mediator, assists and supports the parties to explore options and resolve issues themselves, often with a view to allowing an ongoing working relationship between the parties. Mediation is generally more cost effective, less time consuming and less disruptive than an investigation or litigation process.
Mediation may be appropriate where the parties are willing to participate and would prefer to resolve the issues informally. Mediation is more likely to be suitable, and ultimately successful, where the issues do not relate to serious misconduct, but may arise from interpersonal differences, clashes or misunderstandings.
3. Who should investigate? An internal or external investigator?
Depending on your organisation, there may be a number of different people who would be well equipped to conduct the investigation. Consider who has the right level of skills, training and experience within the organisation, such as a senior manager or member of the human resources team. Consider also who is sufficiently independent and unbiased regarding the specific parties and issues that will be investigated and who can dedicate the required time and resources to conduct the process thoroughly and fairly.
Where your organisation has no internal investigator with the necessary skills, time or independence, you may wish to appoint an external investigator. This is particularly so where the issues relate to a senior manager or leader of the organisation. In this situation, an internal investigator is unlikely to be considered impartial or independent. An external investigator may also be able to conduct the process in a way that minimises disruption to your organisation, facilitates the efficient and successful resolution of the issues and ultimately may be more cost effective to your business or organisation.
If you require advice or assistance regarding a complaint, grievance or workplace investigation, please contact OpusRed Lawyers for a fee-free, no-obligation discussion about your needs. OpusRed Lawyers has highly skilled and trained workplace investigators with significant experience investigating allegations of misconduct. We offer a range of tailored investigation services (including advisory, preliminary review and full investigation services) to suit your organisation’s requirements. We offer our clients fixed fee or capped cost estimates for all investigation services. Please refer to our Workplace Investigations page for further details.
Alternatively, if you wish to arrange a mediation, OpusRed has a nationally accredited mediator, Managing Partner, Sam Pandya. Sam offers fixed fee arrangements for his mediation services. Please refer to our Mediation page for further details.
You can contact OpusRed Lawyers on 1300 676 787.