From time to time employers may conduct a workplace investigation into conduct in the workplace. Workplace investigations can arise when:
- There are allegations of sexual harassment;
- There are allegations of sex, race or other forms of discrimination;
- There are allegations of bullying; and/or
- There are allegations of misconduct.
It is important that all participants in workplace investigations – employers, as well as employees who have made allegations, or against whom allegations have been made, are aware of their rights, responsibilities and potential exposure.
How Are Investigations Run?
There are no legal requirements as to the conduct of a workplace investigations. Employers may elect to conduct the investigation internally (with varying degrees of formality), by a lawyer (which may then create some confidentiality through legal professional privilege) or by an external investigator. The type of investigation should be determined by reference to the subject matter and the size and capacity of the organisation.
However, if principles of procedural fairness are not afforded to each of the participants, the findings of the investigations may be more vulnerable to challenge in unfair dismissal or other legal proceedings.
What Are The Alternatives To An Investigation?
At the preliminary stage an employer will be generally be faced with a series of allegations or conduct from which allegations need to be drawn. Conducting a formal investigation may be an option at this point. Other options that should be considered are:
- a more informal fact discovery process.
Workplace investigations are generally only able to make a determination of what occurred. Decisions as to the consequences of what occurred is a separate, and distinct matter. Mediation can often be useful as the focus is on future conduct more than assessment of past events. Often, particularly where the allegations are more about interpersonal relationships than misconduct, a mediated outcome may achieve more with less damage to the organisation.
I Am The Subject Of A Workplace Investigation. How Should I Behave?
As the subject of an investigation, it is important to carefully consider the appropriate approach to participation. This will require a consideration of the potential outcomes of the investigation.
Key issues to be determined include:
- whether or not to seek provision of clear detailed particulars to allegations being made;
- the extent to which the process provides procedural fairness
- whether the best and most appropriate response can or should be provided in writing, or orally;
- what context exists for the allegations, including whether the allegations are made in bad faith.
Segelov Taylor Lawyers can assist employees and others who are subject of workplace investigations.