What common mistakes happen during an investigation?
ELM: In your opinion, what are three common mistakes that can happen during an investigation that will impact an employer?
LUKE: A common mistake is failing to properly scope and plan for the investigation from the outset, including in relation to the terms of reference and clarification of roles.
A further trap that we often see is a failure to afford procedural fairness. This includes the need for an investigator to be impartial, and ensuring that employees are informed of allegations made against them in clear terms and giving them a reasonable opportunity to respond. However, those being investigated should not be allowed to dictate the process – for example, we sometimes see employers going beyond what is reasonable to accommodate demands by employees (often through a lawyer) where they refuse to participate in interviews and say that they are only prepared to respond in writing and/or need more time.
Another common mistake in investigations into specific conduct is the investigator failing to properly particularise the allegations, and sometimes going beyond making findings of fact and forming conclusions or making recommendations that are not within the scope of the investigation.
ELM: How would you suggest employers overcome these best?
LUKE: Those responsible for scoping and setting up the investigation must understand the purpose of the investigation up front. This involves consideration of what are the issues (or potential issues) and what is a reasonable response to deal with them, including by taking a ‘forward looking’ approach to getting better workplace outcomes.
It is extremely important that all involved in an investigation are afforded procedural fairness, and that you stick to a fair and reasonable process. Sometimes requests not to attend interviews or to reschedule timetables are made for legitimate reasons, and should be accommodated so far as is reasonable, but often they are an attempt to ‘de-rail’ the process. Try to avoid an investigation process that is reliant on written responses (as compared to interviews) as it can easily become protracted, and you lose the ability to ‘read’ the employee’s body language which can be important in determining credibility.
Allegations should be particularised in sufficient detail and based on separate alleged facts. This is best done after interviewing a complainant (and not just relying on a written complaint), and then having the complainant ‘sign off’ on the allegations. Assuming the role of the investigator is limited to making findings of fact, it is important not to mix factual allegations with legal issues (e.g. whether somebody said something on a particular date vs whether it amounts to discrimination) and not to go beyond the role of making findings of fact.
About Luke Gattuso:
Luke heads up the Employment & Safety Practice in the Melbourne office of Page Seager. His areas of expertise include workplace compliance (incorporating best practice agreements and policies), restructuring, advising on employment issues in mergers and acquisitions, assisting with employment termination and enforcing post-employment restraints.
Before joining Page Seager as a Partner, Luke spent over 14 years with a major international law firm, including as a Special Counsel and Managing Associate. He has advised and represented clients across most sectors on employment and industrial relations issues, from medium sized companies through to some of Australia’s largest organisations, international companies and government.