If an employee makes a complaint against another employee, it can be challenging to know what to do. One way of documenting and assessing complaints is through a workplace investigation. A workplace investigation is a formal process to understand, document, and evaluate the circumstances surrounding employee complaints regarding:

  • bullying;
  • harassment; or
  • discrimination. 

Knowing when to undertake a workplace investigation can be difficult as every situation is different. This article will explain how to go about initiating a workplace investigation and what your next steps should be following the investigation.

Discrimination, Bullying and Harassment in the Workplace

As an employer, you must prevent risks to your workers’ health and safety. This includes ensuring that employees are safe from:

  • discrimination,
  • bullying and
  • harassment.

If you fail to address these issues in the workplace, your employee can make a claim to the Fair Work Commission against you.

So, it is imperative that you and any other managers behaviour that is illegal under the Fair Work Act. If any of this behaviour occurs or if an employee makes an allegation, you should take appropriate action.

Benefits of a Workplace Investigation

It is your responsibility as an employer to protect your employees from unlawful behaviour in the workplace. If you fail to do so, you might be legally responsible for any mental or emotional damage that the employee suffers. 

If an employee makes a complaint of bullying, harassment or discrimination and you fail to investigate, you could face serious consequences from the Fair Work Commission or Human Rights Commission.

By undergoing a formal workplace investigation, you will be able to fully document the complaint and look into whether it is true. An effective workplace investigation will include recommendations which can prevent the same issues arising in the future. It will also aim to promote harmony amongst the team. 

Putting the Right Policies in Place

All businesses should have an anti-discrimination policy and a bullying and harassment policy. If your company does not, you should develop those policies as soon as possible. 

If you don’t put these policies in place, it could make your business appear problematic if you ever face a FairWork claim. 

After putting a discrimination policy and a bullying and harassment policy in place, you must train staff members on the content of these policies. Within the policies that you give to managers, you should detail the processes surrounding workplace complaints and investigations procedures.

Case Study

In a recent case, an employee complained to her manager and HR team that co-workers had been bullying her. The business decided not to commence a formal investigation, noting that the employee was under performance management at the time, and there was a lack of evidence for her claim. 

The employee brought the matter to the Fair Work Commission, who found that her managers had behaved “unreasonably” towards her. Here, the Commission stated that her employer’s decision not to investigate the complaints was not reasonable. Her employer was also found to have breached their own bullying and harassment policy. 

Understand when your workplace policy will require you to commence an investigation. If you don’t have a workplace policy, you should have an experienced employment lawyer draft one. This will assist in reducing any problems that might come up in the future.

When to Engage an External Investigator

By hiring an external investigator to conduct the workplace investigation, you will reduce the risk of any employees alleging that the investigation was biased. While acting as an impartial third party, an external investigator will ensure the proper legal process is followed throughout the investigation. 

You should engage an external investigator where: 

  • an employee makes a complaint against a senior employee;
  • the subject of the claim is serious; or
  • your HR department is unfamiliar with the investigation processes. 

An external investigator will undergo the process of:

  1. deciding if an investigation is necessary;
  2. interviewing employees, any people involved and witnesses;
  3. gathering additional material such as file notes and emails;
  4. reviewing the evidence and statements;
  5. providing parties involved with the opportunity to comment on evidence that is contradictory to their version of events; and
  6. compiling an investigation summary into a formal report for the employer.

What is the Content of the Formal Report?

A formal investigation report will typically:

  • list the relevant facts at issue;
  • balance those facts with evidence and law; and 
  • assess whether the events are proven, not proven, or inconclusive.

If the situation involves managerial decision making, the report will also detail whether that decision making was reasonable or unreasonable. 

The report will typically end with recommendations for the employer, including: 

  • whether you should take disciplinary action;
  • suggestions for further training; and
  • development of additional workplace policies. 

Key Takeaways

If an employee has made a serious allegation of discrimination, bullying or harassment, it is crucial to conduct a formal investigation. An effective workplace investigation will analyse the claim and make a recommendation for future action. It will also minimise any risks for your organisation moving forward. If your business needs assistance in creating workplace policies or conducting a workplace investigation, contact LegalVision’s dispute resolution lawyers on 1300 544 755 or fill out the form on this page.

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.
Blythe Dingwall

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