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How to ensure the fairness of workplace investigations


Man holding up "You are Fired" business card

Advice | Employment Legislation | Staff

By Michael Cosgrove

When investigating a workplace incident or situation that could have a detrimental effect on the rights, interests or expectations of an employee, procedural fairness must apply. This is especially true if the action is likely to lead to the termination or demotion of the employee. Here’s how to ensure procedural fairness factors in your workplace investigations.

Many of you might not be familiar with ‘procedural fairness’. It was formally known by the term natural justice; one that’s still widely used in Industrial Relations. Procedural fairness applies to situations where a decision is to be made that may have a detrimental effect on the rights, interests or expectations of a person, in particular, an employee.

Historically this concept applied to formal legal proceedings, but now applies strongly to the employment relationship, especially if the action is likely to lead to the termination or demotion of the employee.

Procedural fairness consists primarily of three easy to understand principles:

  1. A fair hearing – In which the employee is given the opportunity to be heard and to present their case or version of events. Prior to this they should be advised in writing as to the allegations, in as much detail as possible, and given an adequate time in which to respond to the allegations.
  2. Independent and unbiased decision makers – This may not always be possible, but any investigation should be undertaken by a completely unbiased and independent investigator. This rule also applies to any procedures that are associated with any investigation.
  3. A decision based on evidence – Logical proof or material evidence, rather than mere speculation or suspicion, must be applied when finalising any investigation. Evidence should be clear, and any procedure undertaken to gather such evidence should be transparent.

But how can you ensure procedural fairness during the investigation of a workplace incident or complaint? Here are some easy to follow tips:

  1. Act promptly and communicate all matters pertaining to the issue with transparency and accuracy. All parties, including witnesses, should be informed of how long the process will take, what the expectations are of their conduct, and if any delay is going to occur, that the reasons for the delay are communicated in a timely manner.
  2. Always allow the employee who is the center of the investigation to have a support person. You must ensure however that any responses to the allegations are answered by the employee and the employee alone. Any third party answer may taint your investigation.
  3. Ensure a neutral decision maker and process. This must be someone that is in no way connected to the investigation or the incident itself.
  4. Ensure full and complete confidentiality. This is a no-brainer!
  5. Maintain a full and complete record of the process steps. Witness interview times, notes etc must all be documented in the report.
  6. Consider all the evidence. To neglect to interview possible witnesses, or gather sufficient and relevant evidence will also taint your investigation.
  7. Finalise the investigation as quickly as possible, and provide a report to the decision maker as soon as possible.

Whilst this process may seem longwinded and time consuming, an investigation into a workplace incident or complaint can make or break your business. The cost of a botched investigation is not only measured in dollar terms, but also the impact on your other employees.

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