LEGALLY COMPLIANT EMPLOYMENT INVESTIGATIONS
Increasingly Employers are encountering situations that require a formal investigation to be undertaken. These may be employment or health and safety related and may involve several people being interviewed.
The requirements regarding Procedural Fairness and Natural Justice must be met in any investigation process to ensure the final report is not jeopardised on a procedural basis. Procedural Fairness requires that the parties being interviewed are provided with all information relevant to the investigation prior to the date of their interview, that they are given the opportunity to comment / respond to this and are advised of their rights to seek independent support and representation. Natural Justice is the rule against bias and the right to a fair hearing.
When required to undertake an investigation into an employment related matter, the Employer should ensure that their actions or presence do not unreasonably compromise the integrity of the investigation process. A simple checklist would include:
- Have you been involved in the matter requiring investigation?
- Do you have sufficient knowledge of the matter requiring investigation?
- Are you able to look at the matter objectively?
- Are you independent of the parties’ subject to the investigation?
- Will your involvement compromise the integrity of the investigation?
- Do you have the skills to undertake a thorough investigation?
- Do you have the time available to undertake the investigation efficiently?
If you are not able to say ‘yes’ to each of the above principles, the final investigation outcome may be compromised and open to legal challenge by the Employee under investigation.
Often Employers have the required skills and knowledge to investigate a situation, they may even have the required skills to be able to undertake a comprehensive investigation, however their relationship with the parties under investigation may be too ‘familiar’ with this opening their outcome report to allegations of bias and predetermination – even if they have sought to adopt an independent stance throughout the process. In such cases, the Employer should consider assigning the investigation to another manager from outside the immediate work area associated with the investigation or engage a suitably skilled independent party to manage the investigation on their behalf.
With the costs of successful Personal Grievance claims increasing significantly in the last 12 months, the Employer is often faced with the question as to save costs by undertaking the investigation internally – possibly increasing their risk of Personal Grievance, or invest money in an independent investigator and potentially reduce the risks of a successful and expensive Personal Grievance.
If you are uncertain as to whether your own involvement in an investigation is a risk or not, please feel free to call us to discuss your options.