The key reasons for an investigation when allegations of misconduct arise is to determine the factual circumstances and whether the alleged incidents actually occurred, and to identify and take account of whether any mitigating circumstances apply in relation to the alleged incidents.

Employers also need to understand the importance of the concept of ‘procedural fairness’ to an investigation. If a business owner dismisses an employee, or takes disciplinary or other adverse action against him/her without first investigating an alleged incident to establish the facts and any mitigating circumstances, the employer opens itself to the possibility that the Fair Work Commission or other commissions or courts may find that the dismissal or disciplinary action was harsh, unjust or unreasonable. In that case, remedies may include reinstating the employee and/or payment of compensation or damages.

It’s important to note that the investigator’s role should be limited to establishing the true facts surrounding the relevant allegations.  The investigator prepares a report, however, decisions about the implications of its findings should be a separate process for more senior executives or the business owner/CEO.

Any investigation should be conducted as soon as practicable after it becomes necessary to ensure that:

1. the allegations are treated as serious;
2. company inaction is not seen as condoning the behaviour; and
3. the recollections of relevant witnesses are still fresh.

Peters Bosel Lawyers is fully familiar with what the Fair Work Commission or organisations like the Queensland Crime and Corruption Commission consider to be best practice when conducting an investigation.

Steps involved in workplace investigations may include:

• taking a comprehensive statement from the complainant;
• face-to-face or telephone interviews with the employees who are witnesses relevant to the allegations;
• collection of documentary evidence, such as file notes, telephone messages, emails and other digital records;
• a review and assessment of the evidence to identify any areas of contradiction, inconsistency, or where follow-up investigation may be required;
• formulating and drafting properly particularised allegations, based on the available evidence, for presentation to the respondent;
• providing the complainant and respondent with an opportunity to review and comment on any evidence that is contradictory to or inconsistent with their position;
• analysis of the evidence to make findings of fact and identify any definite breach of an employer’s workplace policies and procedures; and
• compilation of a report summarising the investigation that clearly sets out the allegations and the factual findings.

Any employee who is the focus of an investigation should also be made aware that they are entitled to seek assistance from an appropriate person (such as a union delegate or other support person) and to have a witness present at interviews and meetings. The confidentiality of witnesses should also be protected as much as possible.

If an investigation finds the relevant allegations proved, the employee should in a separate interview be informed and advised of what will happen next.  Action may include referral of the matter to a higher authority within the company for a decision, or immediate action such as a formal warning or dismissal.

If the investigation is inconclusive or shows the allegations are not proved, an employer must still inform the employee, along with reasons for the decision.

In relation to all issues, but particularly sensitive issues that have the potential to become litigious, lawyers can be engaged to both conduct the fact gathering process, and make findings and provide advice to the employer detailing recommendations as to how best to deal with the issue.

This approach has the potential to attract legal professional privilege which can, in certain circumstances, assist the employer in attaching greater levels of confidentiality and restricted access to the report, findings and recommendations.  If an employer wishes to utilise the protections of legal professional privilege, we can advise as to how best to implement an investigation that attracts such protection.