Workplace investigations often begin in difficult circumstances. An employee may have raised allegations of bullying, harassment, discrimination, misconduct or a breach of company policy. Management may feel pressure to respond quickly, protect staff and reach a decisive outcome.
Speed, however, should not come at the expense of procedural fairness.
For employers, a procedurally fair investigation is not merely an administrative exercise. It is an important part of managing legal, operational and reputational risk. Even where an allegation appears well founded, an unfair or poorly documented process can undermine the employer’s eventual decision.
What does procedural fairness mean?
Procedural fairness, sometimes described as natural justice, concerns the way a decision is reached.
In a workplace investigation, it generally requires the employee who is the subject of allegations to understand the case against them, receive a genuine opportunity to respond and have their response considered before any final decision is made.
It also requires the investigator and ultimate decision-maker to approach the matter impartially. Findings should be based on the available evidence rather than assumptions, workplace rumours or a predetermined view of what occurred.
Procedural fairness does not guarantee that every employee will agree with the outcome. It does, however, help ensure that the outcome can be explained and defended.
A more detailed explanation of procedural fairness in workplace investigations is available from Parke Lawyers.
Clearly identify the allegations
One of the most common investigation errors is putting vague allegations to an employee.
Statements such as “there are concerns about your behaviour” or “your conduct has been inappropriate” may not provide enough information for a meaningful response.
The employee should ordinarily be told, in sufficiently clear terms:
- what conduct is alleged;
- approximately when and where it occurred;
- which policy, obligation or expected standard may have been breached; and
- the substance of the evidence or complaint they are being asked to address.
The level of detail required will depend on the circumstances. An employer must also consider confidentiality, privacy and the welfare of complainants and witnesses. However, confidentiality should not be used as a reason to leave the respondent unable to understand the case they must answer.
Allow a genuine opportunity to respond
An employee must be given a real opportunity to provide their version of events before findings or disciplinary decisions are finalised.
This usually means allowing reasonable time to consider the allegations, obtain advice where appropriate and prepare a response. The employer should approach the response with an open mind.
An interview or written response process should not become a box-ticking exercise designed merely to confirm a conclusion management has already reached. If the employee raises new information, identifies witnesses or disputes important evidence, further inquiries may be necessary.
Employers should also consider whether the employee requires language assistance, accessibility support or some other reasonable accommodation to participate effectively.
Keep investigation and decision-making roles clear
The investigator’s role is generally to gather evidence, interview relevant people and make findings about what is more likely than not to have occurred.
The investigator should not automatically determine the disciplinary consequence unless the organisation’s process specifically assigns that responsibility.
Separating the investigation from the disciplinary decision can help reduce concerns about bias and ensure that the decision-maker considers both the findings and any relevant mitigating circumstances.
An external investigator may be appropriate where:
- senior executives or board members are involved;
- the internal investigator has a relationship with one of the parties;
- the allegations are particularly serious or sensitive;
- there are competing complaints;
- the matter is likely to result in litigation; or
- the organisation lacks internal investigation expertise.
Document the process carefully
A workplace investigation may later be examined by a court, tribunal, regulator, insurer or external adviser. Employers should therefore keep a reliable record of:
- the complaint or concerns raised;
- the allegations provided to the employee;
- interview notes and documentary evidence;
- the employee’s response;
- steps taken to test conflicting accounts;
- investigation findings;
- the reasons for the final decision; and
- communications with the affected parties.
Good records help demonstrate that the employer acted for legitimate reasons and followed a fair process. Poor or incomplete records can make a reasonable decision much harder to defend.
Avoid predetermined outcomes
Employers sometimes make the mistake of deciding what should happen before the investigation is complete.
Comments in emails, internal messages or meeting notes suggesting that an employee “must go” before they have responded can create significant difficulties. They may indicate that the investigation was designed to justify an existing decision rather than establish the facts.
Managers should avoid language that assumes guilt, promises a particular outcome or dismisses the employee’s response before it has been properly considered.
Fair process supports better business decisions
A procedurally fair investigation benefits the entire organisation.
It improves the reliability of findings, reduces the risk of unfair dismissal and other employment claims, supports workplace trust and helps management make decisions based on evidence rather than pressure or assumption.
Employers dealing with serious complaints, proposed disciplinary action or termination should obtain advice early. Parke Lawyers provides employment law advice for employers on workplace investigations, disciplinary processes and defensible decision-making.
This article provides general information only and is not legal advice. Employers should obtain advice appropriate to their circumstances before taking disciplinary or termination action.
