This article continues our series which explores the investigation process and provides tips to ensure processes and decisions are fair and defensible. Read Part 1 “Workplace Investigations – Getting it right” here.
You are ready to go… you’ve decided to begin a workplace investigation and arrangements have been made but…what now? In this article we look at how to handle some common roadblocks you may face when managing a workplace investigation.
It is vital to maintain the independence and fairness of a process whilst managing some common human responses to a complaint being made. As we have already discussed, where a process is flawed or procedurally unfair, employers can be exposed to claims from all involved and this can lead to uncertainty and risk. In this article, we highlight some issues to consider to assist with choosing the right path.
What if the complainant refuses to participate in a workplace investigation?
You may be dealing with a complaint by one individual or several, and the complaint may involve one Respondent or several. Complaints can be made in a number of ways, whether verbally to a trusted colleague or HR representative or more formally in writing in accordance with a procedure.
Regardless of how you receive the detail of a complaint, once an organisation is on notice about an issue or potential misconduct, the obligations to manage the situation begin.
Sometimes complainants do not wish to pursue a complaint, or be involved any further; however this does not mean that you need to drop the investigation. You will need to decide if the issue is serious enough to warrant an investigation without the involvement of a complainant. Ask yourself whether the issue is of wider importance to a team or the organisation or if it is confined to a dispute between two individuals. If it is the latter and the complainant is adamant that they don’t wish to pursue their complaint, we recommend that you satisfy yourself that this decision has been made without undue influence and that there is limited risk to the complainant if the issue is not managed.
If you decide to place an investigation on hold it is good practice to keep in touch with the complainant and refer them to appropriate supports, such as an Employee Assistance Program. At this point you may also consider other ways of managing the issue such as:
- providing training on appropriate workplace relationships;
- review your code of conduct, bullying and harassment, grievance and whistleblowing policies and procedures (or any other relevant documents);
- consider if the issue should be handled as an issue of performance management; or
- whether informal feedback should be provided to those involved.
If you do decide to proceed with a workplace investigation and have sufficient detail of the issue, check whether your policy requires that individuals participate.
If you don’t have a complainant willing to be interviewed, what other evidence do you have to consider? Were there witnesses to the incident or interaction, is CCTV or other electronic records available, was the issue the subject of documents or email records?
Ultimately, you will have to decide whether the complaint can be pursued without the complainant’s involvement?
How should we manage personal leave during a workplace investigation?
Making a complaint and participating in an investigation can be distressing. This is true for everyone involved as they consider the potential impact of the investigation and the potential trauma involved in re-telling their version of events to an investigator.
Of course, investigators should be supportive and reassure those participating that the process will be fair and not impact their employment but this does not always prevent individuals feeling unwell during this time.
If an individual requests a period of personal leave or is suffering from a condition connected to their experiences in the workplace it is essential that the relevant manager, or HR representative be supportive and responsive to the information received.
It is possible that participating in the process could help an individual. We’ve had individuals report feeling like a weight has been lifted from them by talking about their experience and participating in a supportive and fair investigation process. However care should also be taken not to exacerbate a mental health issue by encouraging an individual to discuss their experience before they are ready.
It is difficult to “look behind” a medical certificate and encourage or require participation when a doctor has certified an employee as being unfit for work and this should be handled with care. There are competing obligations at play in such situations. Personal leave is an entitlement for those employees who are unfit for work because of their own personal illness or injury but employers owe it to a complainant, and others affected by a situation, to act on reports of misconduct or other damaging workplace issues.
Also relevant to this issue is the ability for an individual to make a workers’ compensation claim for work related injuries or illnesses. If a claim is made, it is important for employers to assess the claim and consider how it will respond within the relevant timeframes.
Sometimes the taking of personal leave is used by a respondent who is facing potential disciplinary action as a way to delay a process. If you suspect this is the case, this should be handled carefully to avoid the suggestion that action is being taken against the individual because they have taken leave or have a medical condition or illness.
What if the Respondent refuses to participate in a workplace investigation?
Following on from the possibility that a respondent to a complaint will take personal leave to delay a process, sometimes respondents disengage completely. They may refuse to respond to correspondence or calls or confirm in no uncertain terms that they will not participate.
At this point it is useful to consider what evidence you have and the scale of the issue; for example, is it essential that you have the respondent’s input? Can you make findings without their response?
We recommend that you encourage the respondent to participate and reassure them that the process is fair and unbiased. They may be getting advice from a lawyer or union representative which is encouraging them not to participate and this can be difficult to overcome.
Some tips for how to handle a refusal to participate:
- make sure that you have been reasonable in giving them an opportunity to have their say;
- offer the opportunity to respond to allegations in writing, by attending a meeting, or having a phone conference;
- invite them to participate more than once to be satisfied that you have been reasonable, and you can satisfy yourself that you have tried everything;
- make sure that they have received your correspondence by using registered mail and delivery receipts on emails.
If the respondent is an employee, you could give them a lawful and reasonable direction to participate in the investigation and warn them of the consequence of not participating. It will be important to also consider relevant policies and employee obligations to participate.
What if a claim or complaint is received during the process?
As discussed above, WorkCover claims are a risk during investigation processes and times when individuals are in conflict or under pressure. However, other claims open to employees are for an application to stop bullying (in the Fair Work Commission) or that they have been treated adversely in their employment under the general protections provisions of the Fair Work Act.
The fact that a claim is made does not necessarily stop the investigation process; but we recommend that you consider the claim and how it impacts the process and the individuals involved.
Equally, an investigation cannot override the claim process and so you will need to make sure that all relevant timeframes are managed to protect the organisation.
Finally, if a claim is made by an individual involved in an investigation process, care should be taken to ensure that no action is taken against them which could be perceived as retaliation for them making the claim or asserting their rights.
This is a complex area and we recommend that you seek support if any claim is received against your organisation.
How we can help
Moores regularly advises clients how to respond to misconduct and manage workplace investigations, and can assist with conducting investigations in house or working with an external investigator. We can also provide training and coaching for your human resources and senior management teams on how to manage the many issues which may arise, in accordance with your organisation’s policies, procedures and values.
If you would like to discuss our services further, or have any questions in this space, please do not hesitate to contact us.