The who, what and how of workplace investigations

Firms must create a culture in which workplace grievances are rare while also having the capacity to act quickly and decisively if complaints and allegations from staff members are forthcoming, writes Leonie Green.

It is almost impossible to read newspapers or online stories at the moment without coming across the details or fallout of various workplace investigations.

Politician Barnaby Joyce. Melbourne Lord Mayor Robert Doyle. Australian Border Force Commissioner Roman Quaedvlieg. Actor Craig McLachlan.  These people represent just a handful of the high-profile investigations within Australian workplaces in recent weeks and months.

We have seen a steady increase in employees speaking up about alleged mistreatment and wrongdoing in their workplace. The allegations vary, from bullying, sexual harassment and inappropriate use of office or role to other unlawful workplace conduct. Workplaces are still learning how best to deal with complaints and allegations. There are few that do it well.

Most allegations require some form of inquiry or investigation to ascertain what has gone on. However, investigations often go horribly wrong for all involved and are often dragged out for a significant length of time. Careers are ended. Health is affected. Productivity takes a nosedive. And the notion of fairness can be lost on almost all involved.

There must and needs to be a better way.  So let’s consider who needs to be involved, how we can reduce the impact of an investigation and what we can do to avoid them in the first place.

The who

Confidentiality is the key. 

The less people know about the complaint, the better – for all involved. So be very careful who you add to the list of those to be interviewed. The investigator’s role is to determine the facts, based on the complaint only. Nothing more. Nothing less.  A broader culture audit has its place, but it is a very different exercise, so do not mix the two.

Each investigation will be different. However, in the interests of confidentiality and reducing the impact on the workplace, err on the side of less is more.

The other critical ‘who’ factor relates to whether you use an external or internal investigator. Sometimes you need an external investigator to reduce the chance of bias, and to increase the chance that the process will be trusted. Sometimes all you need is the appropriate internal person to conduct a fair process that results in a swift exit for someone who it is clear has behaved in a way that is contrary to the values of the workplace and/or the law.

Beware of hazards, though. Australian Centre for International Agricultural Research (ACIAR) Commissioner Catherine Marriott made a confidential complaint in relation to former deputy prime minister Barnaby Joyce.  She was seeking action through appropriate channels. When the complaint was leaked, the process immediately became unfair to all those involved.

Confidentiality provides a better chance of fairness for all involved.

The how

Brevity is the key.

Roman Quaedvlieg recently lost his job after a 10-month investigation.  He was paid throughout that time while being stood down.  Someone else had to do his job while the investigation took place. Consider the time spent by the investigators and those interviewed.  Think of the ten-month period of uncertainty for all those involved.  Do the productivity math.

The best way to keep to a swift timeframe is to start with the end in mind. Not the end in the sense of whether the complaint is fact or fiction, but rather what the organisation will do with the findings, whatever they may be.

Critically, know the answer to these two questions before you start:

• Will we take appropriate disciplinary action if the allegations are made out, and what sort of disciplinary action might be warranted; and
• If there is insufficient evidence of the allegation, what will we do to support all involved, to mend relationships and enable work to continue?

Too many investigations occur without consideration of the above two questions. In my experience, when these two questions are answered clearly from the start, the process and outcomes are far easier to achieve within a reasonable timeframe.

The what

Culture is king.

Your culture is what enables you to deal with a complaint swiftly, confidentially and appropriately. It is also what lessens the likelihood of inappropriate conduct in the first place.

What you do every day creates culture.  What you address and what you walk past creates culture.  What you focus on creates culture.

What we do in response to allegations or complaints creates culture.  Our response sends a message.  We either struggle or are slow to respond and the conduct is tacitly condoned within our workplace culture.  Or we respond strongly and swiftly as the conduct goes against what we value most, or what we are trying to foster within our workplace culture.

Human beings are complex, and are not hardwired for robotic, rational responses. Managing workplaces full of human beings is a tough gig.  Our ability to manage this well comes down to the culture we create.  Culture is created by what we do each day, but it is tested when someone speaks up and says something is not right. It becomes a critical test of our culture and one that we fail at our peril.

Leonie Green is a co-founder and director of the Corvus Group, a workplace and legal advisory firm with more than 20 years of senior legal and HR experience working in Australian and international companies. She practised as an employment and industrial relations lawyer for a number of years prior to moving into management roles in industrial relations, shared services and human resources. She can be contacted via email at leonie@corvusga.com.au.