Investigating misconduct in the workplace

What should I know about the initial stages of investigating misconduct in the workplace?

When faced with allegations of employee misconduct, managers must put in place the foundations for a fair investigation

When there’s an allegation of workplace misconduct, a manager or team leader often has first contact with the issue and must decide how to deal with it. It’s a critical time because the success of an investigation depends on how things are handled in the early stages, especially for considerations such as procedural fairness. Here’s what you need to know about investigating misconduct in the workplace.

Is the allegation specific or vague?

It’s critical to understand the specifics of the allegation before deciding how to proceed. For example, an allegation that an employee “steals stuff” isn’t very helpful. But an allegation that provides a reasonable level of detail can assist you in establishing the issue. For example, a witness saw an employee putting boxes of pharmaceutical supplies into their car after work on three separate occasions.

If an employee makes a vague allegation, you will need to ask open questions to learn more about the issue. For example,

  • Who was involved?”
  • What do you mean?”
  • What did you see?”
  • When did it happen?”
  • Where did it happen?”
  • How did they do it?”
  • Why do you say that?”

Open questioning is an effective way to get a person talking without prompting them to give specific answers (which is a form of closed questioning). Closed questioning can include any question that encourages a “yes or no” answer without giving further information. It should be avoided because there are risks that:

  1. The witness won’t provide you with all the essential information; and
  2. The investigation may be biased or may be perceived as biased

Make sure you take detailed notes of the conversation. If notetaking isn’t possible at the time, make a record of the conversation as soon as possible afterwards. Include the time and date, and store it securely.

What do the workplace policies and procedures require?

Once you’ve got enough information about the allegation, you must check the relevant workplace policies and procedures for any relevant processes, requirements, or instructions. If there are procedures for certain issues, you must follow them as closely as possible. If you have a good reason for not following them, seek external advice before proceeding.

Your workplace may have various relevant policies, including:

  • Investigation and discipline policy
  • Grievance policy
  • Discrimination policy
  • Bullying and harassment policy
  • Workplace safety policy

Failure to follow a policy may create significant issues later. For example, if you terminate a worker’s employment for misconduct and then they take legal action for unfair dismissal. An unreasonable failure to follow policies and procedures may make it harder for your organisation to defend the claim. Further, in some cases, the employment contract requires that both the employee and employer comply with workplace policies and procedures. In these circumstances, your organisation may also be at risk of defending a legal claim. 

Procedural fairness is paramount

From the time you’re made aware of an issue, you need to act with procedural fairness. That is, you must act without bias. You must ensure fair treatment for the person against whom the allegations are made (the respondent). Procedural fairness requires you to:

  • Act promptly, from the time you’re aware of the allegations to the time you must decide how to resolve the matter
  • Tell the respondent about the allegations
  • Seek the respondent’s response, and give them a reasonable time to prepare their response (if possible)
  • Allow the respondent to have a support person present
  • Act impartially
  • Ensure that the evidence supports your findings

Failure to act with procedural fairness may later harm your defence to any legal claim against your organisation, for example, an unfair dismissal claim. It may also hamper your efforts to uncover all the facts and circumstances underpinning the issue or incident.

Before you decide to suspend employment, you should seek legal advice to determine whether suspension is necessary and discuss the next steps.

Is it necessary to investigate the allegations of misconduct?

It’s not always necessary to investigate allegations of misconduct in the workplace. It depends on the seriousness of the issue. For example, consider an employee who inadvertently left a box on a warehouse floor, creating a minor safety hazard. They may need informal reminding of safety requirements or some retraining in workplace safety procedures. However, more serious or complicated issues often require investigation, such as fraud, significant injury or death, or drug use while at work.

To work out whether an investigation is required, you may wish to consider questions including:

  • Is it a complex issue?
  • Are the allegations serious? If proven, could they result in termination of the respondent’s employment?
  • What’s the best way to resolve the issue?
  • Is an investigation likely to uncover further evidence that would be critical to my decision-making?

Speaking to an experienced workplace investigator can be an effective way of deciding what to do next.

Should I outsource the investigation of the allegations?

When you arrive at the question of whether to outsource the investigation, you have reached a critical stage of the process. Ideally, any groundwork has been careful: you’ve avoided completely delving into the investigation process while doing your best to act as quickly as possible and with procedural fairness.

Now is the time to consider whether you should outsource the investigation to an external investigator – an independent third party, such as Investigative Services Group. And the best way to work this out is to contact us to talk through the issues.

Some considerations are:

  • Whether the issue is complicated or serious enough to warrant an external investigation
  • The skills of an external investigator compared with the skills of your workplace managers who would otherwise be responsible for the investigation
  • Whether any sensitive issues affect the collection of evidence
  • Whether your staff would be more cooperative with an independent third party
  • The position the respondent holds in the organisation. The more senior the role, the more important it is to consider an external investigation
  • Whether you have the time and resources to manage an investigation internally

The critical consideration is that a third-party investigator is unbiased and independent. It gives confidence to all parties that the investigation is being handled properly. It’s also vital that the investigator doesn’t make any decisions about how to resolve the issue.

If you decide to engage a third-party investigator, they will usually:

  • Contact the complainant, respondent, and any witnesses
  • Arrange interviews
  • Gather evidence
  • Investigate any other issues that arise
  • Present the evidence to you

An independent investigation aims to reduce the risk of an unfair dismissal claim or other legal action by ensuring that all stages of the investigation are, and appear to be, procedurally fair.

Summing up

Investigating misconduct in the workplace frequently presents significant challenges. Treading with care is the best approach, but quick action is also needed as an important building block for procedural fairness. As a manager, you need to clarify the allegations as swiftly as possible, determine their seriousness, and, if necessary, suspend the respondent’s employment. If mismanaged, these steps are fraught with legal risk, so it’s best to seek legal advice before deciding on suspension. You should also consider whether an investigation is necessary, so it’s critical to have clarity about the seriousness of the allegations and the complexity of the issues.

Contact us for more information about investigating employee misconduct in the workplace and how we can help.

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