What is a workplace investigation?
Workplace investigations ought to be findings of facts not opinion.
Workplace investigations can have serious and long ranging consequences on the career and general well-being of the employee, and hence must be carried out with the utmost care to ensure that fair and unbiased procedures are followed. The principle of fairness should be at the heart of every stage of the investigation, and it is the employer’s duty to ensure that their employee’s rights are duly protected throughout the investigative process.
Once the facts are identified it is then up to the decision makers to apply the appropriate sanction if any.
Investigations need to be guided by a term of reference. The terms of reference ought be precisely drafted so that all parties know what is being investigated.
Who should carry out an investigation?
Investigations can be carried out internally if appropriately trained and experienced persons are available or if not then utilising the assistance of an external service provider experienced in the area.
Who can be investigated?
A workplace is a shared space. Conflicts will inevitably arise. When they do, they should be passively guided by the company policies, procedures and the employees’ contracts.
They will generally be confined to persons in the employee of the company unless the subject matter touches or concerns external persons such as clients or other parties with an interest in the matter. They are civil proceedings and persons outside of the workplace who do not have a contract of employment can be invited but not compelled to attend.
Workplace accusations can be very stressful for the accuser and the accused, and all parties are entitled to fair procedures.
An investigation ought to rely on factual statements provided by individuals within the context of the matter and presumed to be given in good faith. It is important to follow a protocol that is well thought out and well defined in advance of conducting any investigation.
Interviews may be required of the accuser, witnesses, and the accused.
Accused rights in the workplace
The subject matter of the complaint should be aware of accusations and any evidence relied upon and should not be ambushed with this material.
If the complaint is serious, the parties might be removed from the workplace pending an investigation with or without pay. Contracts should be crafted to include this eventuality.
Company procedures are ideally provided to the employee upon commencing employment but if they do not exist can be crafted as part of the terms of reference.
Where appropriate the employee may be given the opportunity to cross examine, have representation, and that the investigation follow fair procedures and company policies.
Statements should be gathered in writing and circulated to the investigator. A right of reply ought also to be provided to the employee concerned.
Outcome of Workplace Investigations
The investigator ought to be a fact finder and should prepare a report based on facts.
It is then up to the Company to apply an appropriate sanction.
Once certain complaints are founded the next steps is likely the disciplinary policy.
If complaints are not founded, then the company ought to consider what is best way to facilitate the co-workers engaging in a constructive way. Mediation might be proposed as a resolution mechanism.
Once that sanction is applied it should follow the disciplinary policy and allow employees a right of appeal to the sanction in accordance with company policies and procedures.
The fact-finding mission is usually the least adversarial part of the process. It is how the company applies its policies to the outcome the usually gives rise to litigation and interventions and any sanctions should be properly explained, rationalised and referable to the company policies.
If you have any questions on workplace investigations, please contact a member of our team for advice and assistance.