Why independent workplace investigations are essential for addressing sexual harassment, bullying, and whistle blower complaints.
In today’s complex working environments, independent workplace investigations play a vital role in resolving serious concerns such as sexual harassment, bullying, and whistle blower complaints.
These investigations are crucial for ensuring that allegations are properly assessed and handled in a fair, unbiased manner. Using an external investigator offers a number of advantages, particularly when it comes to removing internal bias and providing a thorough, reliable report that can stand up in legal contexts, such as unfair dismissal claims or matters brought before the Human Rights and Equal Opportunity Commission (HREOC).
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Why Use an Independent Workplace Investigation?
When serious complaints arise, such as allegations of sexual harassment or workplace bullying, it is essential to handle them with the utmost care and professionalism. Conducting an independent workplace investigation brings several key benefits:
- Removal of Internal Bias: Internal HR departments may be seen as too closely aligned with company interests, which can lead to perceptions of bias or unfair handling of sensitive issues. An external investigator is seen as neutral, ensuring that the process is impartial and objective.
- Preserving Confidentiality: An independent investigator can ensure that sensitive information is handled appropriately, protecting both the complainant and the respondent from unnecessary internal exposure.
- Building Trust with Employees: Staff are more likely to trust the outcomes of an investigation if they know it was conducted by an external party with no vested interest in the internal dynamics of the company.
- Avoiding Criticism of HR: When HR conducts internal investigations, there is often criticism of the department’s impartiality or effectiveness. Bringing in an external professional removes this potential criticism and reassures employees that the process is transparent and unbiased.
How Independent Workplace Investigations Work
Independent workplace investigations follow a structured process designed to gather facts and assess the situation fairly. Here’s how they typically unfold:
- Initial Assessment: The external investigator will meet with key stakeholders to understand the nature of the complaint and establish the scope of the investigation.
- Interviews and Evidence Collection: The investigator conducts interviews with the complainant, the respondent, and any relevant witnesses. They may also review documents, emails, or other evidence that is pertinent to the case.
- Analysis and Findings: After collecting evidence, the investigator assesses the facts against relevant workplace policies, legal standards, and codes of conduct. They apply the appropriate standard of proof to determine whether the allegations are substantiated.
- Report Writing: The investigator compiles a thorough, well-documented report that outlines their findings, analysis, and any recommendations for next steps.
This comprehensive report can then be used by management or HR to take appropriate action and, if necessary, defend the organisation’s actions in any potential litigation.
The Importance of Standards of Proof and Reverse Onus of Proof
An independent investigator must apply the appropriate standard of proof when assessing allegations. In workplace investigations, this is typically the balance of probabilities—meaning it is more likely than not that the event occurred as described.
It’s also crucial that investigators understand the reverse onus of proof. In certain legal contexts, such as claims of sexual harassment, the employer may bear the burden of proving they took reasonable steps to prevent the behaviour from occurring. A thorough investigation and well-documented report are essential in demonstrating that the employer met these obligations, should the matter proceed to a tribunal or court.
Pragmatic Solutions: Employment Lawyer vs. Independent HR and ER Specialist
While some organisations might consider engaging an employment lawyer to conduct a workplace investigation, there are significant advantages to using an experienced HR or employment relations (ER) specialist instead. Here’s how they differ:
- Practical, Real-World Findings and Solutions: HR and ER specialists are typically more familiar with the day-to-day workings of a business and can offer pragmatic solutions that align with workplace realities. While lawyers focus on the legal aspects, HR specialists provide a more balanced perspective, considering both compliance and operational impact.
- Cost-Effectiveness: Hiring an employment lawyer for an investigation can be significantly more expensive than engaging an HR or ER specialist. Independent HR specialists are often more cost-effective while still offering high-quality, professional investigations with a focus on resolving issues before they escalate.
- Focus on Resolution: HR and ER specialists are solution-focused, aiming to offer recommendations that will improve workplace culture and prevent future issues. While a lawyer may prioritise legal defensibility, an HR specialist looks for ways to resolve the conflict and restore harmony in the workplace.
Well-Documented Reports: Protecting Your Organisation from Legal Risks
One of the most significant benefits of using an independent investigator is their ability to provide a thorough and well-documented report. This report serves as a critical resource if the matter proceeds to litigation, such as an unfair dismissal claim or a complaint lodged with the HREOC.
A well-documented investigation report includes:
- A clear summary of the complaint and the scope of the investigation.
- A detailed account of the evidence gathered, including witness statements.
- Analysis based on the standard of proof and relevant policies or legal requirements.
- Clear conclusions and recommendations for action.
This report not only helps protect the organisation from legal liability but also demonstrates that it took the complaint seriously and acted in a fair, responsible manner.
Conclusion
The Value of Independent Workplace Investigations
Independent workplace investigations provide a crucial service in ensuring that serious complaints, such as sexual harassment, bullying, and whistleblower complaints, are handled with care and impartiality. By removing internal bias, ensuring thorough evidence collection, and providing pragmatic solutions, independent HR and ER specialists deliver value to organisations seeking to resolve sensitive issues fairly and effectively. They also offer a cost-effective alternative to using an employment lawyer, with a focus on practical outcomes that improve workplace culture and reduce legal risks.
When it comes to defending the organisation’s actions in legal settings, a well-conducted and well-documented investigation is the best safeguard. The application of appropriate standards of proof and the awareness of reverse onus of proof are essential for ensuring fairness and legal compliance. By investing in an independent workplace investigation, organisations protect themselves while fostering a respectful, compliant, and positive workplace environment.
Assistance with the workplace investigations process
If your organisation is facing workplace investigation claim or if you want to ensure you’re prepared to handle these situations properly, it’s essential to seek expert guidance.
David Haydon is highly experienced in conducting impartial workplace investigations and advising organisations on best practices. He can be contacted directly for advice and support regarding workplace bullying and harassment claims.
David is an employment relations specialist, highly experienced workplace investigator and independent HR consultant. David works with clients Australia-wide.
David Haydon
Employment Relations Specialist, Workplace Investigator and HR Consultant