When it comes to workplace investigations, employers need to strike a balance and consider the circumstances rather than taking a one size fits all approach, writes Amy Zhang
In recent years, there has been a tendency for employers to immediately commence a workplace investigation when a complaint is made to HR and/or management.
While attempts to address employee concerns are always commendable, investigations, and particularly formal investigations, may not be appropriate and necessary in every circumstance.
Indeed, in certain situations, workplace investigations may cause more stress, harm and disruption to the workplace than the initial matter(s) the subject of complaint; and there have been cases where employees have been awarded significant compensation due to psychological injuries caused or exacerbated by the investigation process.
Before commencing a workplace investigation, employers need to first consider whether an investigation is warranted at all. If so, there should then be consideration as to whether the investigation should be formal or informal in nature. This will usually be dictated by the particular circumstances of the matter at hand and potentially the wishes of the complainant.
“Before commencing a workplace investigation, employers need to first consider whether an investigation is warranted at all”
The following are just some questions to be considered:
- Is the issue really an interpersonal dispute between two colleagues which would be best dealt with via conciliation, mediation or a grievance dispute procedure?
- Is the issue really about workplace rules or practices?
- Is the issue one that relates to the workplace at all?
- Is the complaint trivial, frivolous, far-fetched or otherwise not worthy of formal consideration?
- Is the complaint vexatious, without merit, or designed solely to inconvenience or annoy another person or the employer?
- How long ago did the alleged conduct occur?
- Is there a risk of widespread or repeated conduct if the alleged conduct is not properly addressed?
- Does the complaint raise concerns about cultural or systemic issues within the workplace?
- Is there a risk to the reputation of the business?
- Is there a wider public interest in the matters which have been raised?
- Is it one of a series of complaints about the same person or the same type of conduct?
- Are the facts fairly contained or uncontentious, and the issues small in scope?
In the case of sexual harassment complaints, however, employers should be aware of the significant risks which arise if a decision is made not to investigate. Indeed, if the matter leads to litigation, the employer’s failure to take all reasonable steps to prevent inappropriate sexual conduct in its workplace, or a sexually hostile work environment, will be a significant issue. Further, the employer’s failure to investigate may itself be considered a further breach by the employer of its legal obligations.
“A perpetrator who believes he or she has “gotten away with it” may feel emboldened, thereby increasing the risk of recurrence”
It is, of course, also important to consider the effect a decision not to investigate may have on the employee(s) themselves. If the original complaint was justified, a decision not to investigate, or being seen not to investigate formally or fulsomely (whether true or not), may cause the complainant and other employees further significant distress and concern. Furthermore, a perpetrator who believes he or she has “gotten away with it” may feel emboldened, thereby increasing the risk of recurrence.
Managing two or more complaints
Unfortunately, it is not uncommon for there to be cross-complaints made. For example, if an employee complains that he or she has been sexually harassed or bullied by a co-worker, that co-worker may in turn allege the complainant has made up the allegation in order to damage the co-worker’s career and reputation, or make a complaint of bullying or underperformance against the complainant.
In these situations, the same facts and the same witnesses may be involved, and it is tempting to minimise time and costs by conducting a combined investigation. However, such combined investigations are inherently problematic and should be avoided wherever possible. Instead, care must be taken to ensure that each complaint is treated separately, with independent reports produced at the conclusion of each respective investigation (see Romero v Farstad Shipping (Indian Pacific) Pty Ltd  FCAFC 177).
Striking the right balance
As the above makes clear, it is important that employers carefully consider the obligations and risks associated with commencing or not commencing an investigation before doing so. Employers need to find the right balance and consider the particular circumstances of the matter at hand, rather than employ a one size fits all approach.