How to investigate a workplace incident

05 June 2009 8:51am

Proper investigation of workplace incidents and complaints can help protect employers against legal claims by employees, but many HR managers lack the skills to conduct them. Here, an employment lawyer and former police investigator explains how they're done.

According to Brad Petley, a partner in Holman Webb's workplace relations group, HR managers often face serious workplace incidents - such as a sexual harassment, bullying or theft complaint, or an OHS incident - that necessitate an investigation. Rarely will the HR specialist have actually witnessed the incident complained of, he notes, so he or she will need to interview witnesses and take a written statement. In Petley's experience, HR advisors are often uncertain about how to take a proper statement, and sometimes leave it to the witness to write their own, which usually results in an unacceptably brief, and sometimes irrelevant, written account.

"It's just pure luck if there's even a shred of relevance in what they write - usually it's just an embellished short account."

But where any incident potentially breaches a law or workplace policy, an investigation is necessary, he says. HR should conduct its own in-house investigation because in Petley's experience, government inspectors are often concerned with "building a brief of evidence against the employer" rather than ascertaining the truth of what happened.

"Sometimes they do the employer no favours - they may fail to include key pieces of information, or omit factors favourable to the employer. I am not suggesting dishonest conduct by government inspectors but sometimes they may become 'prosecution focused' and fail to recognise the importance of gathering all relevant evidence; including that which is favourable to an employer. Accordingly, the employer should still take its own statements from employees if possible, because they can be useful later if a prosecution is proposed or commenced."

An investigation can serve multiple purposes so it's important to be clear on what you want to achieve, he says. The objectives might include:

ascertaining whether the incident at the centre of a complaint has actually occurred, or the extent to which it occurred, and whether a law or workplace policy has been breached;

meeting an "all reasonable steps" defence should an employee attempt to make his or her employer vicariously liable for the discriminatory or sexually harassing behaviour of a fellow employee; or

uncovering practices that fall short of what is necessary under company policies and legislation, and improving employee behaviour.

Taking statements

A statement is a witness's version of events and should be taken as early as possible after an incident occurs or after a complaint has been received, Petley says.

The actual timing comes down to "what's reasonable in the circumstances", he says. "There shouldn't be undue delay; if the matter's serious, an employer shouldn't put the investigation aside merely because it's inconvenient. Any investigation by its very nature will involve a measure of inconvenience, but the employer needs to understand the importance of conducting an investigation early because you obtain people's version when it's clear in their mind."

"Sometimes employees have a misguided sense of co-operation with authorities," he notes. "They may be overly eager, or may embellish facts to curry favour with the authorities. So if an employer has an opportunity to take an early statement from an employee you 'lock in' that employee's version to protect against a later fabrication or embellishment."

A statement should:

be taken in chronological order - ensure dates and times are not out of order;

deal with the who, what, where, when, why and how of an incident. Rather than allow employees to give an incomplete account, HR managers should ask the questions that facilitate these answers;

include every available witness (taken separately so that their accounts don't "blend");

involve employees who perhaps didn't witness a specific event but can shed light about an unsatisfactory culture that may have developed. For example, if a worker complains of sexual harassment, and mentions that workers on the production line commonly make sexist remarks, statements should be taken to verify (or negate) that account;

be taken from the subject of a complaint after all other witnesses;

contain only facts and avoid self-serving embellishments and generalisations (such as "I never say things like that");

preferably be typewritten. It's fine to accept a handwritten statement from an employee as a starting point but HR should then sit down with the person and type out their full account if possible;

be written in the first person - "I said this and then he said that" - rather than the third person, which is a modified version of events; and

be signed by the person giving it to verify that it represents their account of events.

Interviewing

Interviewing the person subject of a complaint is a sensitive area and one that HR must handle carefully, Petley says.

HR should notify the person in writing about the interview and the general nature of the allegations and set "ground rules" before the meeting. The person who is the subject of a complaint should be offered the opportunity to have a support person present, to provide emotional support and comfort but not to be an advocate for the employee, answer on their behalf or disrupt the interview in any way.

The employee should be given an opportunity to choose their support person but HR still retains a discretion over whether the employee's choice is allowed to be present based on considerations of reasonableness. (Reasons for refusal might include an unreasonable delay in the time it takes the person to be available; that the person is known to have anger management issues; or that they are known by HR to be an office "gossip".)

If a request is refused the employee should be provided with opportunity to nominate an alternative choice. If an employee's choice is refused or if they opt not to have a support person present, the reasons for the decision should be recorded and signed. If the support person misbehaves or disrupts the interview HR has the right to exclude them. "It is always good practice though to set the ground rules about appropriate conduct before the commencement of an interview."

The HR manager or other person conducting the interview should also have a company witness present to corroborate the employer's version of events - what occurred during the interview and the answers given - and to help head off later claims that the interview was conducted unfairly.

Prior to the interview, HR should emphasise that the matter is a confidential one and not to be openly discussed in the workplace. HR should obtain acknowledgment from employees that they understand that.

Questions should be composed prior to the interview to serve as a prompt, but "an interview can be a dynamic process and certain responses can require questions that you hadn't predicted", Petley says.

HR should also be prepared to pause or suspend an interview if, for example, a subject needs to regain their composure or it becomes apparent from the questioning that accounts should be obtained from other witnesses before going any further.

Dealing with evasive employees

Employees under scrutiny can be evasive and untruthful, Petley says, but "it's important not to get upset yourself if you believe they're lying to you".

It's fine to put to an employee that their version of events doesn't correspond with other witnesses' and give them the opportunity to explain, he says. Ultimately, though, an employee whose account is in conflict with an overwhelming weight of evidence from other employees risk their version not being accepted by a tribunal or court.

A calm head and tenacity is required with employees who feign outrage at the interview questioning as a device to unsettle the questioner and end the interview, he says. HR should be prepared for outbursts and indignation - such as "I've had enough of this! This is an outrage!" - and know how to deal with them.

HR needs to manage this situation by being clear about their role and why the interview is taking place, he says. For example: "I understand that you might find this uncomfortable, but I have an obligation to investigate this complaint. You might not like that but I can't avoid my duty. If you made a complaint you'd want me to investigate properly as well."

When not to interview

There will be circumstances when an employer's desire to interview an employee will clash with their OHS obligations, Petley says.

"Sometimes a witness will be medically unfit to be interviewed. For example, if an employee made a report of bullying but before there is an opportunity to speak with that employee, HR receives notification that the employee is off work on sick leave due to stress or psychological reasons related to the complaint, no steps should be taken to interview the employee until a doctor's note is received certifying the employee's fitness to be interviewed.

"Employers have OHS obligations not to expose employees to a risk of injury (which includes a further risk of injury). If an employer blunders in and interviews an employee who is medically unfit, the employer may find itself faced with a workers' compensation claim and any statement taken subsequently ruled inadmissible by a court or tribunal."

In such cases, parts of the investigation involving an interview of the unfit worker will need to be put on hold.

Petley adds that when a person has been certified medically unfit for work for a period and agrees to be interviewed upon their return, an employer should seek specific medical clearance from their doctor that they are fit to be interviewed.

HR Daily has previously hosted a webinar on effective workplace investigations. Click here to watch it (HRD Plus Gold subscription required), or here to order a copy from our online store.

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