Workplace Investigation Process
Workplace investigations are crucial for addressing allegations of misconduct, policy breaches, or workplace incidents. They aim to gather relevant evidence to determine if the allegations are substantiated and whether disciplinary action, including dismissal, is necessary.
This article explores the investigation process, starting from appointing a suitable investigator to drawing conclusions from available investigation evidence. This is not an exhaustive list of investigative steps. Investigators should make their own investigation plan which records the framework of the investigation process and revisit and/or revise the plan as different situations arise.
Appointing the Investigator
The investigator's role is to objectively assess the facts and determine what happened. To ensure fairness, the investigator should not be the person who will decide any disciplinary action. Employers may choose to engage a specialist employment lawyer especially if legal advice is needed during or after the investigation, or a HR professional. Engaging a specialist employment lawyer to oversee an investigation can also protect legal professional privilege over investigation documents.
Balance of probabilities
Workplace investigation findings are determined based on the 'balance of probabilities', a standard of proof which requires 'satisfaction on the evidence that the matter found to have occurred is more likely than not to have occurred' (see Bamber v Hartman Pacific Pty Ltd [2018] NSWCA 248, [90]).
The Briginshaw principle
Findings made on the balance of probabilities need to be made with the Briginshaw principle, a standard of satisfaction which provides that the more serious the allegation, the stronger the evidence may be required to prove that allegation.
Organising Evidence
All documents, interview transcripts, and witness statements should be gathered into a clear, factual timeline. Investigators must identify any inconsistencies, contradictions, or gaps in the evidence.
Witness Statements
Witness statements must focus on facts, not opinions, and should include:
- the witness's name;
- the witness's role in the business;
- the date and time of the incident; and
- a clear account of what they saw/heard.
Witnesses should sign and date their statements but cannot be forced to provide one. If reluctant, concerns like fear of reprisals or confidentiality should be addressed. Investigators should remind witnesses of their confidentiality obligations and the potential consequences of providing misleading information.
Investigative Interviews
Multiple interviews may be needed, particularly if new information arises or if facts need clarification. Interviews should be conducted in private and free from interruptions. Investigators should:
- obtain consent to record the interview if needed;
- clearly explain the investigation's purpose and scope;
- ask open-ended questions about the incident or allegations;
- summarise key points and clarify uncertainties;
- emphasise confidentiality and explain the use of information, explaining whether and how certain information may be disclosed as part of the investigation process and what safeguards will apply; and
- explain that the interviewee should not victimise anyone because of the investigation process and that they should report any victimisation that they experience because of the investigation process.
Evaluating Evidence
Investigators should where possible avoid relying on hearsay or unverified information. Instead, they should validate or challenge witness accounts to ensure fairness. Factors to consider when evaluating witness statements include:
- the level of detail and consistency in the recollection;
- whether the evidence is corroborated by other sources;
- the motivations or potential motivations of the witness; and
- the credibility of the witness, taking into account body language, directness, and consistency.
Drawing Conclusions
When making conclusions, the investigator should:
- apply the balance of probabilities standard with the Briginshaw principle;
- address any gaps or conflicts in the evidence;
- ensure findings of fact and findings as to breaches of policy (if applicable) are based on a clear assessment of all available evidence, including documents and physical evidence; and
- link findings to the allegations raised, and ensure they are well-supported by facts.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
