Workplace investigations – getting the basics right

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So, an incident has happened in your workplace and requires investigating. You’ve never had to do this before and you are, perhaps, struggling to know where to start.

You are not alone—it is a common-place problem and most employers have seen enough newspaper articles to know that more often than not, dismissals which are justified substantively (the why of the dismissal) are often held to be unjustified for procedural issues (the how of the dismissal).

What follows are some tips and considerations to try and ensure that at least your investigation methods will pass the procedural fairness test. It is important to note that this article refers to the process for investigating the matter, not for the disciplinary proceeding and potential dismissal which follows. That is a whole other article in itself.

First, you need to decide who is going to undertake the investigation. It needs to be someone who is not connected with the incident (neither a victim nor a witness) and someone who will not potentially be seen as biased (a friend of one of the complainants or the accused, for example). In larger companies, the investigator will usually be someone who performs an HR role, in smaller companies, you may need to consider hiring an independent investigator.

The need for an investigation usually arises because a complaint has been received. So, the first step is to interview the complainant(s) and take careful notes of what happened, who was present and when the alleged incident occurred. From these interviews compile a list of who else needs to be interviewed, and be prepared to extend that list as the investigation proceeds and based on the comments of the accused.

Use open-ended questions to elicit the information from witnesses, rather than putting closed questions to them which may be seen as soliciting information to confirm other witness statements (example: “How were you feeling by this stage?” rather than “Did you feel frightened at that point?”).

Inform any complainant that unless there is a serious safety threat to themselves or others, (not merely the possibility or potential discomfort of continuing to work alongside the accused) then the employer will need to disclose all information relating to the allegations, including the name(s) of the complainant(s) and all witness statements. Inform the complainant that unless they are prepared to agree to this, the employer may not be able to proceed with an investigation.

Present each witness with the notes from their interview, before giving them to the accused, and ask them to correct any factual errors, add any missing information. Then get them to sign and date the final version as being a true representation of their evidence of the incident.

Where there are multiple witnesses/complainants witnessing the same incident, check their statements for consistency and use follow up questions to clarify why the statement of one witness may be at odds with another. For example, if one witness states the accused threw a book at the complainant, and another witness does not mention this, it may be that one witness is exaggerating or that the other witness temporarily left the situation and did not witness that particular event. Either way, you need to know the reasons for these inconsistencies and assess witness credibility.

Be prepared to go back and test the witnesses about their statements, or interview new witnesses, following comments from other witnesses and the accused. If the accused claims that Witness C, who has provided damning evidence against them, came up to them straight after the event and said it was clearly all the complainant’s fault and this conversation was witnessed by Jane, put this comment to Witness C for their response and then interview Jane and ask if she can recall being present during any conversation involving the event.

Remember, the point of any investigation is to ascertain the facts of the matter, so the decision maker can decide what, if any, action should be taken. The investigation is not about gathering evidence to justify an outcome. It is about deciding what an outcome should be, based on reliable evidence obtained from a thorough investigation.

Once the investigation has been completed, the employer then needs to decide whether there is sufficient evidence of misconduct or serious misconduct to justify a disciplinary proceeding, and if so, clearly set out each allegation the employee is being asked to address. These allegations should be set out in a letter asking the employee to attend a disciplinary meeting, which should also include any potential outcomes (such as a final written warning or dismissal) and state that the employee is encouraged to bring a support person or legal representative. All relevant evidence that an employer may seek to rely on when making a final decision on the outcome, should be attached to that letter, including witness statements, emails, GPS print outs etc. An employer should never rely on evidence when making a final decision, that the employee has not had the opportunity to address when responding to the allegations.

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About Author

Erin Burke

Employment Lawyer and Director at Practica Legal
Email: erin@practicalegal.co.nz phone: 027 459 3375

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