Independent Workplace Investigation Procedures – Melbourne

Being a lawyer skilled in employment relations, Charles has designed and conducted independent workplace investigations, throughout Melbourne and surrounding regional areas, in matters involving allegations of:

  • employee misconduct;
  • workplace bullying;
  • employee performance issues;
  • workplace discrimination;
  • workplace harassment; and
  • employee theft of confidential information.

Investigation Procedure

The workplace investigations and procedures designed by Charles Cody can effectively help in managing such workplace situations.

NB: Not every item in the checklist will be relevant to all complaints. The decision maker and the investigator should use their discretion depending on the circumstances, but should not too readily make assumptions as to the severity or otherwise of the allegations.

Decision Maker:

  • If litigation may eventuate–it is advisable to engage a lawyer. This will provide expertise in the employment laws, neutrality and will facilitate the provision of a privileged written advice which cannot be required to be produced in court.
  • If it is decided to utilise an internal investigator, the person should be independent of the parties and knowledgeable in employment law.
  • Attain report from appropriate manager if possible and brief statements from any witnesses.
  • Collect appropriate policies and documentation.
  • Confirm with the person alleging the conduct (Complainant) in writing that the matter will be investigated.
  • Notify the alleged perpetrator (Respondent) in writing that a complaint has been made and an investigation is to take place (if applicable, in accordance with the organisation’s policy) and advise as to immediate suspension pending the investigation (if appropriate).
  • Direct Complainant and Respondent in writing to attend meetings with the investigator to provide information as to the allegations.
  • Notify Complainant and Respondent that they may bring a support person, or interpreter (if applicable), to the meeting.
  • Impress upon all participants the confidentiality of the process.

Investigator:

  • Investigate promptly.
  • Read the relevant documentary evidence (including any written complaint and incident reports).
  • Read appropriate policies and employment agreements.
  • Notify Complainant and Respondent that you have been appointed as investigator to provide a confidential (and if a lawyer privileged) report to the employer.The notification should set out the allegations and the range of any potential disciplinary action.
  • Maintain and stress confidentiality throughout the process. Witnesses should only be interviewed if their statements are likely to assist the investigator to determine disputed facts.
  • Statements should be recorded and participants told that this will take place to assist the investigator. The investigator should listen to any protests as to the recording of the interviews, but barring exceptional circumstances, decide in favour of recording the interview.
  • Consider having another manager, the line manager or HR, involved in the interviews.
  • Document everything carefully and thoroughly.
  • Treat all involved fairly and equally.
  • If a support person is present (especially a lawyer or union representative), inform them that they are not to act as a representative but they may be consulted by the interviewee.
  • Interview Complainant
    • if alone, advise them they may have a support person present;
    • develop trust but do not sympathise as this may be perceived as bias;
    • keep an open mind – do not draw conclusions until all interviews have been conducted;
    • ask what they consider may be an acceptable resolution to the complaint, noting that the final decision must be with the employer.
  • Interview witnesses including those mentioned by Complainant
    • emphasise confidentiality.
  • In disputed or complex factual scenarios, prepare draft statements.
  • Have Complainantand witnesses sign statements – provide copy of own statements to each witness – emphasise confidentiality.
  • Interview Respondent
    • if alone, advise they may have a support person present;
    • develop trust but do not sympathise as this may be perceived as bias;
    • keep an open mind – do not draw conclusions until all interviews have been conducted;
    • explain potential consequences based upon the policies;
    • suggest legal advice if appropriate;
    • put each allegation and seek a response;
    • paraphrase rather than provide copies of statements;
    • ask what they consider may be an acceptable resolution to the complaint but emphasise that the final outcome is at the discretion of the employer.
  • Interview any witnesses mentioned by Respondent – emphasise confidentiality.
  • Prepare statements.
  • If necessary re-interview Complainant and or Respondent as to information obtained from witnesses.
  • Have Respondent and witnesses sign statements provide copy of own statements to each witness – emphasise confidentiality
  • At completion of the investigation – Report to decision maker with recommendations(if appropriate). If the investigator is a lawyer, it be helpful to point out, under privilege, where policies or procedures could be improved to help prevent a repetition.
  • If investigation is by or through lawyer – Mark report “Confidential and Privileged”.
  • If investigation is not by or through lawyer – Mark report “Confidential”.
  • Investigator should not make decision.
  • Provide Report to Decision Maker.

Decision Maker:

  • Decision Maker must read the report and the appropriate policies.
  • Decision as to whether allegations are substantiated must be made on a “Balance of Probability” basis. If any of the allegations are serious (eg sexual harassment) – a higher level of certainty is required.
  • Decision Maker must decide as to what disciplinary action, if any, will result from the allegations which have been substantiated.
  • Advise Respondent they may have a support person present at disciplinary meeting.
  • The Decision Maker and another manager should attend meeting with Respondent:
    • summarise the findingsattend
    • advise as to opportunity to seek independent advice
    • advise as to what disciplinary action, if any, will result if responses unsatisfactory
    • hear response
    • make decision as to discipline
  • Provide Complainant and Respondent with written outcome