Workplace Investigation Failure
Workplace Investigation Failure – Workplace Investigations into misconduct of any sort including behavioural issues such as bullying, harassment, sexual harassment or discrimination or what I term as organisational misconduct such as theft, fraud and breaches of policies such as IT and internet usage, social media expresses, credit card, travel are complex matters that are often undertaken by inexperienced investigators who lack the skill and training to ensure that they ‘get it right the first time every time’
Here are some of the common failures I see when I have been asked to conduct investigation reviews.
What causes workplace investigation failure;
1. A flawed analysis of the complaints/s
Investigations will for the most part start with the receipt of a complaint or complaints. It is important that a thorough analysis of the complaint is conducted to ensure that the investigator knows what the complaint is about and what the complainant is saying.
Complaints often come in written form via an email or letter and may be full of emotive language and at times lacking in substance in regard to the exact nature of the incident/s complained about; when incident/s occurred; what was actually said; how the alleged bullying for example actually manifested and if there were any witnesses present and if so who?
Complaints are full of information but not necessarily evidence. It has been said that all evidence is information, but not all information is evidence.
Never assume that you know what the complainant means in the complaint. Never make assumption put you own interpretation or values on what is said in the complaint, get full details from the complainant.
2. Poor investigation planning
Remember the old saying, ‘fail to plan and you plan to fail.’
An investigation plan should be completed once you have analysed the complaint as a roadmap to how the investigation will be conducted. It helps you to identify the sources of evidence such as witnesses, other evidence such as emails, documents CCTV footage, it helps to set timeframes and the order of events related to the investigation.
The investigation plan should be fluid and amended during the course of an investigation to reflect information that comes out in the process of the investigation and should be considered as a tool to assist rather than purely an administrative task to complete. Where investigations are oversighted by an internal or external body, an ongoing up to date investigation plan is imperative.
3. Poor interview planning
Your interview plan comes directly from your complaint analysis. A poor complaint analysis will result in a poor interview plan and as a result poor or flawed interviews.
4. Flawed interviewing of the complainant & witnesses
A big area where workplace investigations fail is during the interviews with the complainant and witnesses and this flows directly from a poor complaint analysis and poor interview planning. Common mistakes;
- Failure to develop rapport and not putting the interviewee at ease with the process
- Failure to explain the process
- Failure to understand what the complainant means
- Failure to get sufficient detail
- Not listening
- Interrupting the interviewee, not allowing them to tell their story in their own time
- Focusing on your questions and not the interviewees answers
- Asking leading or inappropriate questions
- Investigator bias, such as
- Confirmation bias – only seeking out evidence information that supports one position or idea
- Halo effect – How your view of the person effects how you feel about his/her character
- Self serving – Taking the path of least resistance
- Stereotyping – Making an irrelevant judgment on the person
5. Lack of procedural fairness
It is important to remember that in a workplace investigation you must afford procedural fairness to a person subject of a complaint, this includes their right to;
- Know – what the complaint against them is in sufficient detail to allow them to respond. This is generally by way of a letter of allegation.
- Be heard or respond to the allegations. This is generally by way of the respondent interview or a written response or both.
- A support person during a disciplinary interview
- To have any determination of the allegation/s based on the evidence and not other factors such as the personal feelings of the investigator.
6 . Poorly prepared letter of allegation.
The letter of allegation should have sufficient detail of the complaint/s to allow for a response. It should also be noted that sufficient time should be allowed between the provision of the letter of allegation and the interview to allow the respondent to understand the allegations and prepare for the interview.
Note: that poor complaint analysis and a poor interview plan lead to flawed interviews with the complainant and witnesses and flows on to a flawed letter of allegation.
7. Flawed interviewing of the respondent
See above re interviewing the complainant and witnesses. Once again if the other parts of the investigation are flawed you cannot hope to conduct an effective respondent interview.
8. Ineffective evidence analysis
When the interview process is finished and all other evidence has been gathered ALL of the evidence must be analysed. You cannot just gather evidence that support one side of the matter.
Questions you should ask:
- What evidence supports the allegation and who is it from?
- What evidence does not support the allegation or supports the respondent’s version of events and who is from?
- Does the witness evidence corroborate the complainants or the respondent version of events?
- Are there gaps in the evidence?
- Are there any other avenues of investigation that you need to pursue?
Without stating the obvious, if the respondent interview is flawed then you may not have all the evidence, you may not recognise gaps and other avenues of investigation that you need to pursue.
Quite simply you may not have sufficient evidence to come to or support your findings.
9. Flawed findings
Finding must be
- Based on evidence
- Logical and considered
- Based on facts not personality
- Relevant to issues in dispute
Poor investigations undermine confidence in any grievance or disciplinary process and leave all parties feeling hurt and vulnerable. Where grievance and disciplinary processes are heralded as important parts of the organisation’s culture, a lack of credibility will hinder reporting of complaints and create or maintain unhealthy work cultures.
10. A poor investigation report
The investigation report is the culmination of your investigation it should
- Clearly and logically detail the evidence on which you base your findings
- Make definitive statement of your findings
- Ensure that it is clear that the evidence supports your findings
- Provide the reader with the full story
- Ensure that your recommendations are support by the evidence and your findings
Once again you cannot hope to provide and effective investigation report of the steps detail above are flawed.
Advice for employers and organisations to avoid Workplace Investigation Failure
At time a workplace investigation is considered to be a simple process, it is not. People lives and the organisational reputation can be one the line.
When faced with complaints employers and organisations should consider the following;
- Do we have someone with the necessary expertise to conduct an investigation/enquiry or dispute resolution intervention?
- Do we have someone with sufficient experience in conducting an investigation/enquiry or dispute resolution intervention?
- Do we have the time to handle this internally?
- Do we want the stress of handling this internally?
If the employer is going to conduct an internal investigation or enquiry does the person/s nominated:
- Have solid experience conducting investigative interviews?
- Have a full understanding of the rules of evidence?
- Have an understanding of procedural fairness?
- Have an understanding of current legislation as it relates to workplace complaints such as bullying, harassment and discrimination?
- Have experience conducting investigations and writing reports that will withstand the scrutiny of an industrial commission or Fair Work Australia?
- If the employer is going to conduct an internal dispute resolution intervention does the person/s nominated:
- Have any experience designing and conducting dispute resolution interventions?
It is not always appropriate or effective for an investigation to be conducted internally. Circumstances where an employer should consider engaging an external investigator include, but are not limited to:
- Where a complaint is made against a senior employee.
- Where the employer does not have adequate resources to properly conduct the investigation internally, particularly if the complaint involves multiple parties, complex issues and/or someone with specialist skills is needed to investigate the complaint.
- Where there is a risk that the complaint cannot be objectively handled by an internal investigator due to a real or perceived conflict of interest.
- If the alleged behaviour or conduct is of a serious (or criminal) nature and the risk of litigation is high, or
- When legal professional privilege may be required over the investigation process.
A poorly conducted investigation can make things much worse
How AWPTI can help you avoid Workplace Investigation Failure
AWPTI can provide workplace investigation training to ensure that you get it right the first time every time.
Conducting Workplace Investigations – Full course – Highly recommended for organisations charged at a flat rate with no limit on attendees
Conducting Workplace Investigation Open course This is is open an anyone, you do not have to be part of an organisation
More courses can be found at www.awpti.com.au
All course except the open course can be provide live by request, which means at a time and date to suit your requirements and can be provide in remotely via Zoom or Teams