Uh-oh. Someone has done something they shouldn’t have. Whether that’s bullied or harassed (honestly, in this day and age? Just stop) or maybe they’ve stolen from their corporate card or tried to email themselves your precious intellectual property. There’s one thing these incidents all have in common – they need to be investigated. This can be informally, formally, internally or externally but all investigations have similar concepts that must be adhered to.
This article will run through the high-level principles of an investigation – what to do when you find yourself in need of an investigation. Why high level? Largely because every scenario and business is different. So we’ll keep it to the essentials and you can work with your Human Resources partners to fill out the process.
LEGISLATIVE FRAMEWORK
There’s a lot of rules that govern people which you likely already know. The important ones to keep in mind are:
- Fair Work Act 2009 (Cth)
- State based Workplace Health & Safety legislation
- Federal anti-discrimination legislation
- Privacy Act 1988 (Cth) (depending on what information you’re handling)
- Corporations Act 2001 (Cth) especially for Whistleblowing Complaints (which is a whole other article).
WHEN WOULD YOU INVESTIGATE?
You would formally or informally investigate an issue any time there is a suspicion of misconduct. You may have a misconduct policy that defines what your business considers misconduct, but it typically means:
- any action that puts another person’s health or safety at risk (which may or may not result in injury and/or death).
- behaviours that conflict with policies such as codes of conduct, intellectual property, information security or technology use policies etc.
- bullying or sexual harassment.
- an employee discriminating against someone on the grounds of sex, race, religion, disability/impairment, age, physical features, political beliefs, industrial activity, gender identity, marital status, sexual orientation, pregnancy (actual or potential), breastfeeding, family responsibilities or parental or carer status from another member of the firm or a member of the public or a third party.
- theft (including misuse of corporate cards or business allowances), fraud, assault, disruptive behaviour or being intoxicated while at work.
WHY DO YOU INVESTIGATE?
You can’t assume that every complaint is completely true and the whole picture of what has occurred – you can’t punish someone without looking into what happened (this is natural justice). Which is tough in the age of #believeher. But natural justice is essential to any process – each person has the right to be heard and has the right to respond to any allegations. That’s also important – they are allegations of misconduct until they are either proven or disproven. Don’t get caught up in stating facts before the investigation has even commenced.
THE PROCESS
The stages of an investigation are outlined below:
WHAT TO AVOID
DO:
- Ensure the investigator is not conflicted. That means they’ve not been involved in the day-to-day management of the employee (they’re not friends or they don’t know their history if any). The investigator should be someone with little to no knowledge of the people involved. Same goes for the decision maker – they shouldn’t have a bias or conflict.
- Communicate – make it clear what is happening and why.
- Be professional, considerate, empathetic and listen carefully – this should be a respectful process for all involved. When dealing with the complainant, ensure you are following a trauma informed response – don’t pressure them, be patient, give them breaks when needed and don’t ask questions in an accusatory manner.
- It is important to suspend a respondent if there is an immediate risk to the health and safety of a person, if the allegations are serious or if there’s doubt as to whether an investigation can be run independently while they are present in the workplace. Suspension should not be done lightly and you should seek legal advice before doing this.
DON’T:
- Don’t make assumptions about guilt or innocence. Don’t pre-empt the outcome of the investigation which includes not planning ahead for any consequences. For example, discussing how you’re going to terminate someone during an investigation is pre-empting the outcome and biasing the process – you’ve already decided they’re guilty before the investigation is over which conflicts with natural justice. By all means you should definitely canvas all the options for all the eventualities – you want to be prepared – but don’t focus on one outcome.
- Wrap the investigation in niceties. What does that mean? Make it clear it’s an investigation, that there are allegations, that they’re being taken seriously and that the business will be running a thorough investigation. Don’t try to be too nice which could result in participants (especially respondents) thinking they were ‘just having a chat’ and not preparing proper responses. This will lead to issues down the track when you either want to handle misconduct outcomes or there’s further issues – nail it on the head early on!
- That being said, don’t ignore how hard this process is for every person involved – including the respondent. Offer EAP support to every participant including witnesses. After an investigation, also ensure that the investigator is okay as these can be stressful to hear about as well.
- Rushing = bad decisions and mistakes. Be patient, let the investigation take it course. Rushing doesn’t give everyone the same fair opportunity to review documents, prepare evidence and consider their response. This means the integrity of your investigation becomes questionable.
- Equally – don’t stall unnecessarily – ensure that the investigation is dealt with as a priority so there are no undue delays.
- Don’t let the investigation get off course. Hear the complaint, decide the allegations, investigate those allegations. If more information comes to the surface during the investigation – such as counter claims or further allegations – park them and say they will be considered and addressed separately (potentially with another investigation).
- Let the investigation recommend outcomes – that is for the legal advisor. The investigator is responsible for finding of fact only – not for suggesting what should happen next or what risks exists. This falls to the General Counsel team or external legal counsel if they’ve been briefed.
- Don’t stop an investigation if the respondent is on indefinite stress leave. These processes are stressful for everyone involved and it isn’t fair to the complainant to be in limbo indefinitely. This is one of those tricky areas where you should seek legal advice. You may need to seek medical clearance from their treating doctor to talk to them while on leave, or run the investigation and make findings in their absence and without their input.
WHAT’S THE DIFFERENCE BETWEEN AN INVESTIGATION AND MISCONDUCT PROCESS?
This is an important question we hear a lot.
An investigation determines fact. Did anything happen? If so, what? Did it meet the relevant test under law or policy? The questions during an investigation are along the lines of – who, where, why, what.
A misconduct process tests the employee’s knowledge of what they did wrong. Did they understand what they did was wrong? The questions in a misconduct process are along the lines of – did you know about our policy to not do what you did? If you did, why did you think it was okay? If you didn’t know the policy, why didn’t you when it’s been brought to your attention on #describe the induction education, annual declarations, annual training, communications etc#.
TOUGH QUESTIONS
What if your investigation involves senior management?
This is always tough. It’s best to avoid a bias as much as possible, keep the details to a close group of senior stakeholders (Head of HR, General Counsel etc) and engage external legal advisors and investigators to ensure there’s an independent process. This way you can avoid any concerns regarding pre-determined outcomes, bias or conflicts of interest. See below re board notifications.
Working With Others
It’s assumed that each HR team has a process in place which involves alerting the legal department to allegations or complaints as soon as they arise. This is proper risk management but it also enables the General Counsel team to utilise privilege as soon as possible.
Your HR teams are the absolute experts at people management – that’s why they do what they do! Accordingly, they should be in all conversations, guiding and managing the process. It also means they ‘hold the pen’ on written communications, file notes and documents revolving around the process. The role of legal is to review those communications, ensure there are accurate file notes and be available as a legal advisor to ensure the process is running as it should be. But never underestimate the core role that HR play in investigations. They’re process and risk-owners and should be responsible and proactively manage the issues accordingly.
Always remember to keep your risk appetites and governance processes in mind when managing complaints – at what point is the Board notified? Only for certain issues or certain roles or all issues (or are the CEO and HR entrusted to manage them all without Board oversight)? These are conversations that are important to have so that key stakeholders (and ultimate risk owners) are kept informed of issues in their businesses. They should be documented in governance processes like risk matrixes, board policies or complaint management policies.
PRIVILIEGE
For a reminder of privilege, please see our earlier article here.
In order for an investigation to be covered by privilege it needs to be for the purposes of obtaining legal advice and confidential. So, in an ideal world, a privileged investigation would look like this:
- Issue is raised by HR to General Counsel.
- Issue is kept confidential to as small as group as possible.
- General Counsel commissions a report into the allegations in order to determine what the legal risks are and provide legal advice to HR.
- General Counsel engages either external counsel or an independent investigator who investigates and reports back to General Counsel.
- General Counsel discusses with HR SME, giving legal advice on next steps and a course of action is decided.
It would be impossible to cover all the essentials of an investigation in one article, so we’ll aim to cover more in future articles.
If you are in need of legal advice in this area, please reach out to your usual KWM contact or contact Philip Willox who will be happy to assist your business.
If you want a particular topic covered by our From Our Inhouse To Yours Pulse series, please reach out to the Inhouse Counsel Series editor, Yasmin Milligan, via LinkedIn.
