Industrial tribunals have repeatedly criticised employers over botched investigations or their failure to investigate workplace incidents, including bullying. Acumen Lawyers practice director Brad Petley told attendees at a recent “how to conduct effective workplace investigations” webinar, hosted by OHS Alert’s associate publication HR Daily,that a properly-conducted investigation could be the key to your organisation’s success in averting or defending a prosecution or claim (that’s right, DEFENDING a prosecution!).
One of Petley’s messages is that “bullying complaints should never be “off the record”, and serious investigations should never be discussed at a coffee shop” – helooooo!!!
Conducting workplace investigations: how it should be done
According to the Hr Daily, every HR professional will face a serious workplace incident at some stage in their career. Will you know exactly what to do when confronted with a harassment complaint, a theft allegation, or an OHS event?
The webinar How to conduct effective workplace investigations which can be purchased in full concluded with a question and answer session and the following transcript contains lawyer Petley’s answers to eight critical questions.
1. What is the role of a “support person” in investigation interviews?
The role of a support person is to provide emotional support for someone being interviewed.
We’re talking about misconduct meetings, not informal counselling; a serious meeting to determine allegations of misconduct or perhaps gross negligence or something like that.
Sometimes a person may turn up to a meeting and might want to bring their lawyer. It needs to be made clear that their role is as a support person and that person’s witness. [It’s not] some sort of mini hearing where the person present stands up as an advocate and starts making submissions.
The caveat is that the role of a union representative, their right to represent an employee is recognised in the legislation, so [employers] have to be very careful about trying to limit their behaviour.
Those sorts of things should be sorted out before the meeting commences.
2. Do witnesses in an investigation need an offer of a support person?
Not unless for their emotional wellbeing it appears necessary. [WTF – we believe every person under “investigation” needs a support person and that this right should be made very clear and even encouraged!]
3. Is it best to conduct investigations offsite, onsite, or at a head office?
Full-blown investigation issues should never be conducted in a coffee shop. [WTF – helloooo!]
At a multi-site employer, usually it’s best to [hold investigation meetings] at head office, but it depends on the circumstances and facilities available.
4. What if bullying is alleged and the witnesses want to talk to the investigator “off the record”?
It often happens. Another way of saying this is, “I want to tell you what’s happened, and I want you to do something about it, but I don’t want to be involved, I don’t want to be responsible and I don’t want anyone to know I’ve said it”.
That can’t happen[ whaaaat?]. The employer needs to explain to the employee that it is bound by legal obligations to all employees and say, “We need to get your version so we can do something about it”, and inform them about how they’ll be supported.
It may be that the person doesn’t want to say anything further. Then it may be time for refresher training [around bullying] in the workplace, monitoring of people, and being mindful of that [alleged bully’s] interactions. [Talking about coercion???]
5. If a voice recorder is used during interviews, does the recording then need to be transcribed and a copy given to the employee at the centre of the allegations?
That recording is the employer’s record of the meeting. If that matter proceeds to an unfair dismissal meeting and there’s some dispute over what was said, that audio recording could be tendered in evidence and played to the industrial tribunal. [Seems like all people being “investigated” need to be aware that they may be recorder – make sire you ask!]
There is no obligation to provide a transcript [wow… are we talking about hiding the truth just in case?]. If a request for one is made, that request should be assessed at the time.
6. What should an employer do when it believes the respondent to a complaint might be suffering from a medical condition that affects their conduct at work?
You have to look at the factual circumstances of the matter. [Do you] just have a personal view that the person is not quite right, or is there other information that, for example, the person is bipolar and not taking their medication as they should? [Oh dear, here we go again, blame the victim and label him/her as unstable, rrright!]
Unless they have a medical qualification [managers] can’t make those decisions. Any suspicion has got to be backed by medical evidence if they wish to act upon it.
7. Are there any legal guidelines around what “undue delay” means?
If a matter needs to be investigated an employer shouldn’t necessarily bring their business to a screeching halt because of it, but the fact that someone is suspended doesn’t mean [they can think], “I can take my time on this one, we’ll get back to him in a fortnight’s time”.
If a person has been suspended, they should know their next step.
8. Once a decision has been made, should that be provided to the employee in writing?
Once a decision has been made it can be conveyed verbally, and that can be read out to the person, and then the actual sanction can be confirmed in writing.
Certainly an interesting “webinar”, it appears to us that it is geared towards protecting the employer (and not the victim) and again shows the so often encountered bias in those “investigations”… an this is how investigations are supposed to be conducted? Did I miss something?