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When should you conduct a workplace investigation?
The question as to when the most appropriate time is for employers to bring a formal investigation against an employee was posed recently, with a BigLaw firm special counsel offering some key insight.
Emma Musgrave
Speaking at Thomson Reuters Australia’s Mental Health and Employment Law Conference, Heidi Fairhall, special counsel at Herbert Smith Freehills, spoke of the importance of correct procedure in the investigation process.
“That might be because someone has made a complaint about all sorts of things. There might be an incident which has come to the employer’s attention which has given them a need to investigate, safety or otherwise, or, there’s a particular obligation to do so, due to your policy or a particular type of law.”
Ms Fairhall said it’s important for employers to remember to take reasonable steps to ensure inappropriate behaviour is addressed or identified. It’s then essential for employers to give themselves an opportunity to address it properly, which may mean taking disciplinary action, she added.
“My red flag here would be when you’re conducting an investigation, be [conscious] of where you’re potentially exposed to legal risk – obviously that might be in a discrimination context, or whether a high-profile individual is involved, or the nature of the incident or the allegation and whether its already got media attention; or if there's an impact on stakeholders – that could be internal or external, including clients, for example,” Ms Fairhall said.
There are several things employers may want to investigate, she noted.
The first is performance management, which Ms Fairhall noted is one of the most common.
“It’s fairly a common occurrence where you’ll see people be investigated for things that are essentially about performance. It might be coming late to work, might be failing to get their documentation in on time, things like that,” she said.
“The other thing that often comes up is non work-related matters. Increasingly, in relation to investigations, involves conduct which is out of work. Often they’re social media related, in their own time, on their own devices, but nonetheless may well have a connection to work.”
In relation to how employers should start conducting the investigation process, Ms Fairhall recommended making sure the investigator is impartial.
“If you’re the investigator it’s important to be mindful of the need to present an unbiased and an objective demeanor when you’re conducting an investigation,” she said.
“Other things to think about is whether the investigator actually has the capacity and time to conduct the investigation. If you’re a stretched HR professional, and this is a big job, that’s something you need to take into account. If it’s beyond your capacity to deal with internally you might need to think about engaging external resources.
“Also, there has been examples where investigators have come into fire and been accused of basically being inexperienced.”
As one of her final notes, Ms Fairhall told the crowd: “I hear people sometimes talk about informal investigations and formal investigations. As a general comment, I would say you’re either investigating something or you’re not and if you’re investing [in] it, you need to take appropriate steps to ensure that you’re conducting it properly.”
In her session, Ms Fairhall also revealed common mistakes employers make when having to conduct a workplace investigation. At the same conference, KPMG Law partner James Simpson clarified employee dismissal processes, and the issues associated with terminating an employee for illness and medical incapacity reasons.
Emma Musgrave
Emma Musgrave (née Ryan) is the managing editor, professional services at Momentum Media.
Emma has worked for Momentum Media since 2015, including five years spent as the editor of the company's legal brand - Lawyers Weekly. Throughout her time at Momentum, she has been responsible for breaking some of the biggest stories in corporate Australia. In addition, she has produced exclusive multimedia and event content related to the company's respective brands and audiences.
Prior to joining Momentum Media, Emma worked in breakfast radio, delivering news to the Central West region of NSW, before taking on a radio journalist role at Southern Cross Austereo, based in Townsville, North Queensland.
She holds a Bachelor of Communications (Journalism) degree from Charles Sturt University.
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