BULLYING AND HARASSMENT INVESTIGATIONS
The process of conducting investigations in allegations of bullying and harassment in the workplace can be a complex and challenging exercise, requiring in-depth knowledge of relevant legal principles, and specialised, professional and thorough investigative processes.
Edge Investigations offers organisations, of all sizes and across a range of industries, a full suite of investigative services, including:
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Full and complete independent investigation services
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Supported investigative services that assist the organisations to undertake their own internal investigation by providing professional guidance and support.
Our services can help organisations to proactively manage bullying and harassment complaints, mitigate the risk of escalation by enabling early intervention, and make informed decisions about where best to invest resources to educate employees and improve organisational culture.
WHEN MIGHT YOUR ORGANISATION REQUIRE AN INVESTIGATION?
In situations where one or more employees have raised allegations of bullying or harassment, an organisation may choose to conduct an internal investigation, independent from any formal investigation that may be conducted by Fair Work Australia.
Such situations may include those where there have been instances or allegations of employee misconduct, or those stemming from possible breaches or contraventions of workplace laws related to bullying and harassment, including sexual harassment.
The goal of this kind of investigation is to determine the facts of the matter, evaluate the evidence at hand, and resolve the issue in an efficient manner that adheres to the relevant legal requirements. The aim is to undertake an investigative process that is both fair and robust, and able to withstand the potential scrutiny of a tribunal or court proceedings, so that decisions made, and actions taken on the basis of the findings of the investigation are legally defensible.
PROCEDURAL FAIRNESS IN INVESTIGATIONS OF WORKPLACE BULLYING AND HARASSMENT
There are a number of general, fundamental principles that must be adhered to when undertaking an investigation into allegations of workplace bullying and harassment. An independent investigator acting on behalf of an employer or organisation must operate within the principles of procedural fairness whilst also taking into consideration the employer’s legal obligations and the employees’ legal rights, giving particular regard to all applicable legislation, regulations and guidelines, industrial agreements, formal workplace policies and any specific terms of the employment contract or workplace agreement.
Any conduct that may be seen as a breach of an employer’s duty of care when investigating workplace bullying or harassment – particularly with respect to procedural fairness – may constitute a failure on the part of the employer to afford their employee/s the consideration and support they are entitled to. Furthermore, where procedural fairness is neglected in the conduct of an investigation into workplace bullying and harassment, any findings of the investigation may be called into question and decisions made, and/or actions taken, by the employer on the basis of those findings could attract criticism of the organisation and expose the employer to legal liability and sanction.
WHY DO INVESTIGATIONS INTO WORKPLACE BULLYING AND HARASSMENT REQUIRE SPECIALISED PROCESSES AND PROCEDURES?
Investigations into workplace bullying and harassment must be conducted by competent and skilled investigators, using professional and specialised investigative procedures, because it is imperative that every aspect of the investigation be undertaken with complete transparency and in accordance with proper legal principles, to ensure that findings of the investigation and decisions made on its basis are fair, unbiased and able to withstand intense scrutiny.
Any error, omission or deviation from the legal and/or procedural requirements specified by the relevant regulatory bodies may invalidate the investigation, jeopardise any potential civil or criminal case that may exist and give an individual cause to take legal action against the employer, even if an allegation is well-founded or an employee’s dismissal was warranted.
REQUIREMENTS FOR CONDUCTING EFFECTIVE INVESTIGATIONS INTO WORKPLACE BULLYING AND HARASSMENT
Responding to and investigating allegations of bullying and harassment requires tact and diplomacy. Ultimately, a successful investigation of these matters relies on the investigator’s ability to conduct a rigorous, unbiased and confidential investigation, in a sensitive and professional manner, and in accordance with proper investigative and legal principles, practices and processes. To that end, the investigator must:
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carefully plan the investigation, giving due consideration to potential conflicts of interest and consequences,
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provide adequate information to all involved parties regarding the investigation process and their rights, responsibilities and obligations,
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ensure all pertinent information is collected and considered – including witness reports, interview transcripts, relevant policies and procedures, and other information and documentation,
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maintain professional and respectful contact with all involved parties at all times, giving due consideration to the circumstances of the dispute and communicating with sensitivity,
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help to ensure that channels of communication between the complainant, respondent and employer are kept open throughout the investigation process, and
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clearly demonstrate their objectivity and impartiality during the entire investigation process, particularly when conducting interviews, assessing the reliability and validity of evidence collected, making a finding or determination, and preparing a formal investigation report.
HOW CAN EDGE INVESTIGATIONS ASSIST YOUR ORGANISATION TO CONDUCT EFFECTIVE INVESTIGATIONS INTO WORKPLACE BULLYING AND HARASSMENT?
While some organisations have their own HR officer or team who are trained and equipped to manage and investigate complaints, many organisations don’t – especially smaller businesses. For those organisations that don’t have a team of experienced HR professionals in their employ, the task of undertaking a formal investigation into allegations of bullying and harassment, which can potentially have serious and far-reaching consequences, may be impractical or impossible.
Organisations must also give careful consideration to whether or not it is appropriate – given the nature of the allegations, and the particular circumstances or parties involved –for the investigation to be conducted internally, especially in smaller organisations.
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It is important that the chosen investigator is a highly-experienced professional who is well-versed in the legal and procedural requirements for conducting specialised investigations into disputes that occur in, or are related to, the workplace – especially those that pertain to particularly serious allegations, such as bullying and harassment. Flawed or botched investigations can be extremely damaging to all parties involved, so it pays to have an experienced, unbiased, external investigator handle these kinds of investigations.
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Edge Investigations offers a range of services and resources to assist organisations manage complaints of bullying and harassment, and our thorough and efficient independent investigation services provide organisations with the critical details and evidence required to make effective, informed and legally defensible decisions about individuals and teams.
Edge Investigations’ highly specialised investigative procedures are based on fundamental legal principles and accepted practices and processes for investigating serious workplace allegations or incidents and are fully compliant with all applicable regulatory requirements. These procedures enable our highly trained and experienced team of professional investigators to conduct every investigation to the highest standards; make fair, unbiased and robust determinations; and deliver reliable investigation reports that meet employers’ obligations under the Fair Work Act and Work Health and Safety legislation.
If you require assistance with investigating workplace disputes, allegations of misconduct, or breaches or contraventions of workplace laws, contact Edge Investigations today.