Workplace Investigations

Workplace Investigations

MKL Legal provide practical workplace investigations including:

What is a workplace investigation?

The workplace investigation process is usually required following allegations of misconduct, bullying/harassment or allegations of unfair treatment in the workplace. It usually involves the interviewing of relevant witnesses, the collation of documentary/physical evidence a subsequent assessment as to whether the alleged conduct has occurred on the ‘balance of probabilities. Subsequent to this, findings will be made as to compliance with relevant laws (such as the Fair Work Act 2009 [Cth]) and what if any action is required moving forward.

Why do I need a workplace investigator?

An employer may not have the resources internally to conduct an investigation in a prompt and efficient manner due to other workplace priorities. Furthermore, management may be involved in the matters requiring investigation and as such may not be in an unbiased position to investigate and take subsequent action.

In addition to this, an experienced workplace investigator can help ensure that any action an employer takes is supported by verifiable evidence and has followed a process of thorough procedural fairness being provided to all witnesses and parties.

What is a legally privileged investigation?

Investigations conducted by MKL Legal are legally privileged if they are conducted for the purpose of providing legal advice. This legal professional privilege protects confidential communications between a lawyer and their client and can prevent the other parties to an investigation from requiring the investigation to be produced/provided.

Psycho Social Risks require investigation

A person conducting a business or undertaking (PCBU) must eliminate psychosocial risks, or if that is not reasonably practicable, minimise them so far as is reasonably practicable.

The Safe Work Australia Code of Practice outlines best practice for managing and investigating psychosocial risks in the workplace as follows:

Conducting work health and safety investigations

Any work health and safety investigations into reports of incidents involving psychosocial hazards should primarily aim to identify hazards or new or improved control measures.

Investigations must maintain appropriate privacy and confidentiality of all workers involved to the extent permitted by law. For example, do not discuss reports in public areas or with anyone not involved in the investigation. Ensuring confidentiality should not prevent the parties involved from seeking support.

Nature of investigation

The nature of your investigation should be proportional to the risks and suit the circumstances. When deciding the nature of an investigation consider the:

–              level of risks involved

–              complexity of the situation, and

–              number of workers involved or affected.

A formal investigation may not always be the most effective option. For example, the best response to a single low-level incident may be immediate informal discussions with the workers involved and changes to the relevant control measures. The earlier problems can be identified and addressed, the less likely a formal and complex investigation will be required.

Small businesses may require assistance if a matter is complex or high risk. You can seek advice from the work health and safety regulator, your industry body or a work health and safety expert.

Selecting an investigator

It is important to find an investigator who has the confidence of all parties involved where possible. They should be impartial and have the skills and knowledge to identify psychosocial hazards, assess the risks and recommend appropriate controls.

An external investigator may be required if an impartial internal investigator is not available, for example where a matter involves a senior manager.

Balancing a fair and transparent process

The investigation should be fair, transparent and timely to ensure due process for both those who raised the issue and any workers who have had allegations made about them. Throughout the investigation affected workers should be:

–              informed of their rights and obligations during the process

–              provided with the opportunity to respond to any allegations made against them

–              provided with a copy of relevant policies and procedures

–              kept informed about possible outcomes, timeframes, rights of appeal and reviews, and

–              provided with adequate and fair support.

Concurrent investigations

Harmful behaviours, such as bullying and harassment can be inappropriate responses from workers exposed to other hazards, for example high job demands and poor support. Where these behaviours breach employment codes of conduct or professional standards you may require a separate investigation into these breaches as a disciplinary matter, as well as a systematic work health and safety investigation looking at any hazards present and ensuring they are controlled.

Where breaches of a code of conduct or professional standard are not proven there may still be an underlying work health and safety risk which needs be controlled.

Sexual Harassment requiring investigation

The Safe Work Australia Code of Practice for sexual and gender-based harassment outlines best practice for managing and investigating these incidents in the workplace as follows:

Investigating and responding to reports

A PCBU’s internal WHS investigation should focus on protecting workers and others from harm by identifying whether there is a risk of sexual or gender-based harassment that has not been controlled so far as is reasonably practicable, or there are more effective and reliable control measures available. A WHS investigation does not require a formal complaint.

While a WHS investigation focuses on the risks and control measures, it may need to address the behaviour of individuals, such as whether they have followed health and safety policies that have been communicated to them.

An investigation may itself introduce WHS risks – these risks must be eliminated or minimised so far as is reasonably practicable. This can be done by:

  • ensuring the investigation is fair, transparent and timely
  • ensuring the investigation is impartial and takes a non-biased approach, especially in environments with a lack of diversity, including in management and leadership
  • ensuring decision makers are appropriately trained, unbiased and accountable where they have discretion over reporting and systems
  • ensuring due process for both those who raised the issue and any workers who have had allegations made about them
  • taking a trauma informed approach (see Section 7.3)
  • ensuring workers have access to support
  • maintaining appropriate privacy and confidentiality of all workers involved, and
  • ensuring appropriate information about the outcome of any investigation is provided to the individual who reported experiencing the harassment.

A WHS investigation may occur in parallel with other investigations such as an investigation into whether there has been a breach of employment codes of conduct, professional standards or other legal frameworks.

Nature of investigation

As a PCBU the nature of your WHS investigation should be proportionate to the risks and suit the circumstances. When deciding the nature of an investigation consider the:

–              level of risks involved

–              complexity of the situation, and

–              number of workers involved or affected.

A formal investigation may not always be the most effective option. For example, the best response to a first incident of a worker using inappropriate language may be immediate informal discussions with the workers involved. The earlier problems can be identified and addressed, the less likely a formal and complex investigation will be required.

Whether a formal investigation is conducted should also be considered carefully in the context of other workplace laws.

Small businesses may require assistance if a matter is complex or has a high risk. You can seek advice from the WHS regulator, your industry body or a WHS expert.

While WHS investigations are not focused on individual actions but on the risks to health and safety from the actions, they should still take a trauma informed approach. 

Selecting an investigator

It is important to find an investigator who is likely to have the confidence of all parties involved where possible. They should be impartial and have the skills and knowledge to identify sexual and gender-based harassment, assess the risks and recommend appropriate controls.

An external investigator may be required if an impartial internal investigator is not available, for example where a matter involves an allegation about the behaviours of a senior manager. When selecting an external investigator, you should ensure they have the expertise and knowledge to conduct investigations in a trauma informed way, and that they do not have any conflicts of interest.

Trauma informed approach

The concept of a trauma-informed approach means workplace systems recognise and acknowledge that worker experience of trauma may impact how those experiencing trauma from sexual and gender-based harassment or with a history of trauma interact with systems and processes. For example, trauma may impact how a worker responds or recalls events and can describe them to an investigator.  A trauma informed approach to investigation procedures and practices supports workers trust and participation. This can include principles of:

  • Safety, both physical and emotional (e.g. Does the investigation process consider the emotional safety and wellbeing of affected individuals, or is the process likely to distress someone with a history of trauma? Does the process ensure the affected person is protected against retaliation, re-victimisation and re-traumatisation?).
  • Trust (e.g. Is the process sensitive to people’s needs, empowering to affected individuals, offering some flexibility and opportunity for choice where reasonably practicable? Are workers supported to make informed choices, given timely information about the process/their rights? Does the process offer suitable support for the affected person?).
  • Equity and respect (e.g. Does the process ensure interpersonal respect, acknowledge diversity in all its forms and is it inclusive? Does the process ensure all parties are kept informed in a timely and consistent manner throughout the process and ensure all parties are listened to with empathy and without judgment?).
  • Hope (e.g. Does the process assume optimism and the possibility of recovery and resolution?).

7.4         Confidentiality

It is important that PCBUs develop supportive environments where workers feel safe to raise sexual and gender-based harassment risks and disclose instances of harassment, including as part of an investigation.

All workers should be made aware of any mandatory reporting or disclosure obligations that apply to you as the PCBU or employer, either under state and territory laws or as part of the worker’s employment contract, that may limit confidentiality. Workers should be made aware of how their personal information will be managed and protected when making a report.