Cracking the case:
What you need to know about workplace investigations
Lorna Reid, Workplace Relations Consultant
What is a workplace investigation?
A workplace investigation is a process carried out by an employer or an external third-party investigator to gather information and facts about a compliance concern or an incident that has occurred in your workplace. Investigations will typically occur in response to allegations of misconduct, harassment, discrimination or other serious violations of company policies, procedures, or workplace laws.
The purpose of a workplace investigation is to determine what happened, assess the credibility of the information gathered, and inform decisions about how it will be addressed and how to prevent similar issues in the future. Investigations are usually conducted by a designated investigator or a team of investigators who are impartial and trained in conducting thorough and fair investigations.
Who is involved in workplace investigations?
Workplace investigations can involve a number of parties, and sometimes it is not always clear when an investigation commences who needs to be involved. Generally, an investigation will involve:
- Complainant(s) – this can either be an individual or a group of people that have raised the grievance/complaint.
- Respondent(s) – this is the person, or multiple people, that have been accused of the improper conduct or unlawful behaviours.
- Investigator – the person, or company, in charge of determining the facts of the case. This often is a party who is external to the employer.
- Witness – anyone that has knowledge of the alleged event/s either because they have observed it, or they have personal experience.
When are external workplace investigations necessary?
An external workplace investigation may be necessary due to occurrences such as those listed below:
- Serious allegations: The allegations are particularly serious, such as those involving high-ranking executives or potential criminal behaviour or behaviour that could impact WHS.
- Conflict of Interest: The internal investigators may have a conflict of interest or could be accused of being bias, which would compromise the integrity of the investigation.
- Complexity: The investigation into the allegations is complex and requires specialised expertise or resources that are not available internally.
- Objectivity: There are concerns about the objectivity or impartiality of the internal investigation process.
- Company policy: Your company policy has dictated that certain types of investigations must be conducted externally.
What is the employer’s role in the investigation if they are engaging an external investigator?
When a company engages external investigators, it is no longer their role to investigate the allegations, however they still play an important role in the investigation.
A company’s role typically involves initiating the investigation, providing relevant information and context to the external investigators, and ensuring that the investigators have access to the necessary resources and individuals to conduct the investigation.
It is important when a company engages third party investigators that they do not try to influence, or get involved in the investigation process. This separation is essential to maintain the integrity and impartiality of the investigation. By refraining from involvement, the company demonstrates a commitment to fairness and objectivity, which is essential for building trust amongst employees and stakeholders. Furthermore, avoiding direct involvement helps mitigate the risk of bias or conflicts of interest that may arise if the company were to influence the investigation.
Overall, allowing a third-party investigator to conduct the investigation independently helps ensure a thorough, unbiased and credible process.
Why is it important that an investigation takes place?
When allegations are presented to the company, the company needs to decide whether they are going to perform an informal investigation or a formal investigation. Informal investigations may be conducted internally to understand the extent of the allegation and whether the matter is serious enough to warrant a formal investigation. An internal investigation may be enough in the case of minor conduct issues or other minor performance concerns.
Formal investigations, and particularly ones that involve external investigators, may occur in the case where there are:
- serious allegations,
- multiple parties involved,
- a significant amount of evidence to address,
- conflicts of interest, and/or
- concerns about business reputational risks.
In this case, a formal investigation would include:
- interviewing the complainant(s), respondent(s), witnesses,
- drafting of formal statements,
- the preparation of a detailed investigation report,
- analysis of evidence, and
- recommendations on appropriate consequences (if applicable).
Procedural Fairness
The most critical element of any workplace investigation is to ensure that all parties involved are afforded procedural fairness. The failure to provide procedural fairness could result in criticism of any decision or process undertaken to arrive at the outcome of an investigation. It also has the major risk of opening the company up to legal liability.
In the outcome of the recent case Scott Matthew Ashburner v St Marys Rugby League Club Ltd [2024], the Fair Work Commission emphasised the importance of procedural fairness. They found that the football club’s dismissal of a bar attendant (Mr Ashburner) for spreading false sexual rumours lacked procedural fairness and was therefore unfair. Although Mr Ashburner’s conduct warranted dismissal due to bullying and sexual harassment, the club’s deficient investigation and dismissal processes, as well as its failure to manage escalating tension between Mr Ashburner and a colleague, rendered the dismissal unfair. Despite being counselled twice for swearing at colleagues and involved in escalating conflicts, Mr Ashburner was summarily dismissed without proper investigation or opportunity to respond to the allegations.
In this case the football club’s HR Manager admitted to flaws in the dismissal process, including failure to investigate a complaint and to communicate reasons for the dismissal clearly. Although Mr Ashburner claimed ignorance of the club’s policies on bullying and sexual harassment, the Fair Work Commission emphasised that common sense should guide workplace behaviour, stating that even without explicit policy knowledge, basic standards of conduct are expected. Mr Ashburner defended his comments as sarcasm, but the Fair Work Commission ruled them as sexual harassment and his behaviour as bullying.
For an investigation, procedural fairness should include at a minimum the below:
- Providing respondents sufficient information about the allegations, including the opportunity to respond and informing them of the consequences of the allegations are substantiated;
- Providing the respondent with a reasonable amount of time to prepare and respond to the allegations. (i.e. if there are 20 allegations against a respondent and you have provided them 24 hours to respond to all 20, is this reasonable?)
- Offering the employee the chance to bring a support person to the interviews and providing adequate notice of the interview so they have time to find a support person;
- Ensuring that the investigator is unbiased and objective; and
- Ensuring that any actions taken by the employer to address the allegations is based on fact and evidence.
What can we do to help?
Failure to adequately investigate allegations can lead to claims before external bodies, such as the Fair Work Commission, or the Australian Human Rights Commission.
We will be your external investigator
Experienced Workplace Relations Consultants will take the emotion and time out of workplace investigations, and can provide you, the employer, with a professional conducted investigation and outcomes report. Let us assist you with your workplace matters.
Don’t let workplace issues escalate!
If you are faced with having to investigate a workplace matter, give our Workplace Advisory Services team a call to discuss your specific needs and how we can assist you.
A competitive hourly rate of $250.00 per hour (inclusive of GST) applies to investigation work for Business Chamber Queensland members. A higher rate applies for non-members.
We can also provide you with an estimate of costs – ask for a quote today!
How can Business Chamber Queensland help?
Business Chamber Queensland members with HR services as part of their membership are invited to contact the Workplace Advisory Services team:
P: 1300 731 988
Businesses who do not have a HR membership may also seek assistance however a competitive consultancy fee will apply for any advice and assistance provided.
For membership enquiries, please contact our membership team on 1300 731 988.
