Many employees have unrealistic expectations of workplace investigation processes and outcomes. Employees will usually be involved in a workplace investigation as the person making a complaint or as the respondent to a complaint. In most cases, the starting point for any employee to address a workplace grievance is to make a formal internal complaint to the employer. This will usually relate to workplace bullying or harassment (sometimes in the form of micro management by superiors) or inappropriate conduct by another employee or supervisor. Yes, where possible, the issue should be addressed with the employee in question first but a complaint will usually follow if this is not successful.
Whether as complainant or respondent, do not expect that any complaint process will automatically be substantively or procedurally fair or result in a fair or just outcome, at least in your eyes. An investigation process may be handled internally by a Human Resources representative or by an external investigator appointed and paid by the employer. The investigator is not there to protect your interests or be sympathetic but to make findings about the issues. In many instances, employers will seek to hide an investigation report and its findings under the cloak of “legal professional privilege”, even when there are no legal proceedings being considered.
You should NOT expect that:
a. all issues you raise will be investigated;
b. you will be provided with a record of interview or the opportunity to supplement any statement you have made;
c. all relevant witnesses will be interviewed, even if you name them;
d. you will be given an opportunity to respond to any versions of events different to your own;
e. you will be provided with a copy of the investigator’s report or even be provided a summary;
f. you will be provided with any rationale for an outcome other than an arbitrary statement of findings.
Yes, it seems counter intuitive because an employee who is not given a sensible and rational explanation for finding their complaint to have no merit (or why allegations against them have been substantiated) is likely to be unsatisfied with that result. The employee often becomes an unproductive employee and either leaves the employer or commences some form of legal action if it is available which results in increased cost and loss of productivity to the employer. That is if they don’t just resign (which might have been the employer’s intention).
And an employee who is dismissed from employment will be more likely to take legal action if they don’t understand the evidence or rationale behind their sacking. Of course, it is true that for some complainants, not even the most substantively just and procedurally fair investigation and report will satisfy their feeling of injustice. But you have to ask, if an employer is going to undertake an investigation but refuse to provide any detail of the evidence relied on or reasons for their decision, then what really is the point?
What can you do to avoid this? If making a complaint, or providing a response to allegations, you should:
a. ensure your issues are clear;
b. be as detailed as possible with reference to dates, times, places of events and what actually happened as well as the people involved;
c. make sure your complaint or response uses full sentences, as few acronyms as possible, page and paragraph numbering, headings and sub headings so that it can be easily read and understood and contains a conclusion summarising the detail;
d. refer to specific employer policies where relevant (such as grievance/harassment policies);
e. seek a response within a specific time period; and
f. keep in mind the law is terrible at dealing with low level cultural and systemic issues and best at dealing with specific factual events.
If the employer is going to undertake an investigation, you should consider:
a. asking for a panel of investigators to choose from and their resumes or even nominate your own investigators to seek to ensure their independence. The employer will almost certainly refuse but you have to start somewhere;
b. asking to see and approve the terms of the investigation referral and instructions provided to the investigator (you may not agree with the scope of the investigation as a complainant). Again, this will almost certainly be refused which may be an indicator of the general approach being taken by the employer;
c. asking up front whether you will be provided with a procedurally fair process as set out above;
d. asking how long the process will take;
e. taking a support person with you to any investigation interview;
f. asking what steps the employer will be taking to ensure your own health and safety while the investigation takes place.
So, the message is, if making or responding to a complaint, go into it with your eyes open, ask questions and don’t expect what you think is a fair process or outcome. Please contact us if you would like any further information or help.