The decision around whether to investigate a workplace complaint can be difficult for employers. Employment Law Specialist and Barrister James Crichton outlines what employers should be considering in their assessment around whether to undertake an investigation.
Employers frequently get into a stew about whether they should investigate a complaint, or not. It can be a bit of a balancing act.
The first port of call has to be your company policies. Does it say you are obligated to investigate a complaint from within your own staff? If yes, that answers your question of whether to investigate or not.
But typically, in our experience, most employers don‘t have such requirements in their policy. So how do you judge it?
For instance, is it just a staff member “sounding off” or venting? How do you tell if it is this or a serious concern? Ask yourself if the issue being raised is serious or trivial. Sometimes this is not straight forward. If it is trivial, you can probably put it aside. If it is serious you need to ask yourself whether you are now on notice of something happening in your workplace that is undesirable, if it is true. You will need to do a robust preliminary assessment to satisfy yourself that you know which category your issue falls into.
Having got evidence of an undesirable happening in your workplace, what happens if you do nothing? A staff member could lodge a personal grievance against you, or worse still, a number of staff might independently lodge grievances. Or a staff member might refer the matter to Worksafe and allege their workplace is unsafe. Neither outcome is desirable, when there are proper alternatives available to you.
Remember that just because someone says something has happened does not make it true. It is only an allegation until you have satisfied yourself that it is reasonably likely to have happened.
What is critical, once you have made your preliminary assessment, and assuming you have decided it is a serious allegation, is that you then investigate the truth or otherwise of the allegation.
Some employers wrongly leap straight to a solution to the problem without deciding if there is truth in the allegation, or not. In our experience, some employers will seek to mediate between staff as a way of addressing the complaint but that is doomed to failure by definition, if you do not already have a view about what actually happened.
It is also common for employers to say that the complaint is just a “he said-she said” kind of thing and so there is no chance of ever finding out just what had happened. For the record, we regularly deal with investigations for clients in this category and we are experienced at determining the most likely explanation of what happened.
And sometimes, complaints will be presented to you in “in confidence”. Sadly, such a complaint is no complaint at all. This is because in our law, every person complained about is entitled to confront their accuser. So an investigation cannot proceed without a complaint that “goes on the record”. If required, our team would be able to suggest an alternative process where there is no formal complaint.
Frequently, employers think they cannot afford an investigation by an external expert but these enquiries do not necessarily cost a fortune.
Whatever the cost, it is imperative that if the allegation made is judged to be serious, there needs to be an enquiry to establish the facts. That is all an investigation typically does. If you don’t know what happened, how can you deal with it? And dealing with it before you know the facts is doomed to failure as well, as I note above.
