The workplace investigation is an important tool used by a business in making a determination as to the most appropriate response to a serious allegation made against one of their workers.
These allegations can involve anything from theft, sexual harassment, physical or psychological violence, bullying, a serious work health & safety breach or any conduct that could be defined as serious misconduct.
Workplace investigations should as far as possible be conducted by an independent party. An investigation is defined as a civil proceeding. Accordingly the standard of proof required is “on the balance of probability”.
Where terminations are a likely outcome affecting the earning potential of the respondent, the Briginshaw standard should be leveraged which ensures that the “balance of probability” is determined on compelling evidence that persuades the investigator or panel of its occurrence or existence.
The investigator should be familiar with the rules of evidence, canvas and weigh up all the available evidence and be open minded throughout the process. The respondent should be offered a written overview of the allegation made and a high level summary of the evidence available. They should also be given a fair opportunity to respond to the allegation and be allowed to have a support person with them during any meetings.
Lastly, a well conducted investigation not only ensures procedural fairness to the parties, it also protects the company from unfair dismissal or related court proceedings should a termination be the outcome. Conversely it also protects the business from the applicant who makes the allegation by claiming the business was negligence in not responding responsibly to the complaint.
As always..if in doubt, ask an expert!
