5 Steps to a workplace investigation

A workplace investigation into alleged misconduct becomes necessary where a person alleges an employee has engaged in conduct (or failed to do something) that if proved amounts to conduct warranting a formal disciplinary response. The complaint can come from outside the employer, such as from a customer, as well as from within the organisation.

This is a useful and simple way of thinking about the process:

• Analyse the issues;

• Plan the investigation;

• Obtain information and interview witnesses;

• Evaluate the evidence and draw conclusions; and

• Write the investigation report.

Investigation Plan

Like any prolonged activity or project, an investigator needs to have a plan. The end point is to determine if there is enough evidence to show that on the balance of probabilities the employee engaged in the conduct complained of.

Consideration needs to be given to where that information can come from. There are only 3 sources:
people;
documents; and
other evidence (for example, CCTV footage).

The investigator needs to consider who they need to speak to and in what order. It is often the case that investigators start with the complainant. The complainant can be asked to identify any other person that was present, who else they think may be relevant to talk to and if there are any documents or other evidence that may be relevant.

It is also important to ask the employee who is subject to the complaint the same questions. It may then be relevant to ask the other witnesses.

It is beyond the scope of this blog to discuss in detail how to conduct an investigation. However, the purpose is to be in a position to conclude whether there is enough evidence to conclude the alleged conduct either did or did not occur. Steps 1 and 2 are vital to effectively doing Step 3. Step 4 is impossible without Step 3. Step 5 is necessary to effectively show that the investigation has been procedurally fair, what evidence has been relied on or discounted, what conclusions were made and, if disciplinary action is foreshadowed, on what evidence such action is based.

Ref: Workplace investigations – the essential do’s and don’ts, Winter, B, Cooper Grace Ward Lawyers, TENs Annual Employment Law Conference 2020, July 2020, paragraph 6.1