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.
Generally, it is a good idea to commence any investigation as soon as possible after the alleged conduct occurred. There can, however, be good reasons to delay an investigation or aspects of it. For example, it can be practical (but not always) to delay an investigation into alleged misconduct where a regulatory agency or law enforcement agency is conducting an investigation.
Internal or External Investigation
Key questions to address are:
- whether your organisation has someone within it who has the time and skill to conduct an investigation;
- can you afford an outside investigator; and
- how will you ensure the investigation is fair.
It is less likely that an outside investigator will be biased or seen to be biased and this is an important element going toward a fair process. Also, the cost difference between an external and internal investigation may not be that great. It depends on how extensive and complex an investigation is required. A matter not involving many witnesses and where there is no dispute as to facts may not require an external investigator. However, one which involves a sifting of contested accounts of many witnesses and likely to require many hours of work may be better undertaken by an outside investigator.
Procedural Fairness/Natural Justice
These terms are often used interchangeably. Strictly speaking ‘natural justice’ is associated with legal processes and ‘procedural fairness’ with administrative processes. The idea of the two is similar: that a fair and proper process is followed in arriving at a decision that may negatively affect the existing interest of a person or other legal entity.
Hallmarks of a procedurally fair investigation are:
- The person under investigation is advised of the reason for the investigation, details of the complaint and provided an opportunity to respond;
- The investigator is not biased in their investigation;
- The investigator makes all reasonable inquiries and any findings of fact are based on the relevant, probative evidence;
- The investigation does not take into account irrelevant factors;
- The employee being investigated is given the opportunity to seek assistance from an appropriate person and, where appropriate, have a support person present at interviews and show cause meetings.
Bias – actual and perceived
The legal test for “perceived bias” (also referred to as “apprehended bias”) is whether a fair minded person might reasonably apprehend that the investigator might not bring an impartial mind to the investigation.
The point is that if the person chosen to investigate a matter is perceived to not be able to fairly conduct the investigation, that can be enough to taint any findings of the investigation.
Suspending an employee during an investigation
This depends on the seriousness of the alleged conduct. Suspending the employee from work during the investigation can benefit the employee as they may find it uncomfortable attending work while an investigation is ongoing. It is also useful from the employer perspective as it means the employee is less able to engage in conduct that might interfere with the investigation.
Employees should generally receive their usual pay while suspended. There are very limited circumstances where this is not the case and we recommend obtaining legal advice before suspending an employee without pay.
Support during the investigation
Employers should make sure that an employee under investigation is offered access to support services such as the employer assistance scheme. If the complaint was made by another employee, then the complainant should also be offered access to the same services.
It is important to remember that while the investigation is ongoing, there is only an allegation that misconduct has occurred. Nothing has been proved.
5 Steps to a workplace investigation
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.
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:
- 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 paper 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.
Proposed action and providing the report to the employee subject to the investigation
It is our view that, generally, if an investigation report is the basis for a decision to take disciplinary action against an employee then it should be provided to the employee. Procedural fairness requires that an employee must be given an opportunity to respond to adverse findings and make submissions as to appropriate action prior to any decision that may adversely affect their interests, such as a decision to dismiss.
If the investigation report is not provided, it could be argued by the employee that the case against them has not been fairly put to them and they are therefore not able to properly respond. This could then result in any decision to take action being successfully challenged notwithstanding the investigation itself was beyond criticism.
 ‘probative value of evidence’ means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue – definition from https://www.judicialcollege.vic.edu.au/eManuals/UEM/29816.htm
 The High Court of Australia case of Ebner v. The Official trustee in Bankruptcy  6 ALR 644 remains the leading authority and the full quote at 641 is …”[A] judge is disqualified if a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question that the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial”
 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