Workplace investigations: 5 reasons to outsource
If an allegation of bullying, sexual harassment or discrimination is made in the workplace, in most circumstances an employer will need to conduct a workplace investigation. Problems may arise if the investigation is not conducted properly thereby resulting in additional time and expense, reluctant participation, inappropriate outcomes and a loss of faith in management and the organisation.
Conducting a workplace investigation is complex and can be time consuming. Even when an organisation has an internal HR/IR team there are situations when outsourcing the investigation is the best way to go.
Five reasons to outsource
Here are five reasons why you should outsource your workplace investigation:
1. Independent and impartial
The first question that needs to be asked is can the person who will be conducting the investigation be impartial? One of the fundamental requirements for procedural fairness is that the person conducting the investigation is not the subject of actual or perceived bias. This may become difficult where the investigator has a relationship with the person being investigated. For example, they are both members of the leadership team and regularly interact. It can also be difficult when the investigator already has a pre-conceived view about the person raising the complaint because of prior information such as a performance review outcome or manager feedback.
Outsourcing the investigation completely removes any actual or perceived bias by bringing in an independent third party. This will remove any perception that the investigation will not be conducted fairly as it is being done by someone outside of the organisation.
2. Ensure a fair hearing
The conduct of a workplace investigation requires a very good understanding of the other fundamental requirement of procedural fairness which is ensuring a fair hearing. This essentially requires that the person who is the subject of the investigation is given an adequate opportunity to be heard prior to a decision being made. This entails a number of requirements including providing adequate prior notice of all matters relating to a decision that may adversely affect their interests, disclosing critical issues to be addressed and information that is credible, relevant and significant to deciding these issues, and allowing a reasonable opportunity to respond.
An experienced investigator will ensure the correct process is followed including collecting documentary evidence, conducting witness interviews, ensuring confidentiality, drafting allegations, interviewing the person who is the subject of the investigation, assessing all the evidence and finally drafting the report.
Fundamental to this process is ensuring that the person under investigation is given an adequate opportunity to respond to the allegations before a decision is made. Another fundamental part of this process is that the report is drafted in a manner that adequately outlines all the applicable evidence and clearly sets out the reasoning for reaching a finding for the allegations. This is vital as the report may need to be relied upon to defend against an unfair dismissal claim.
Some investigations can be very complex exercises involving hundreds of pages of documents, numerous complaint matters, more than one complainant, numerous witnesses and the interpretation of legislation, policies and procedures. These types of investigations can be logistically intensive requiring the drafting of a detailed investigation plan.
The process can be even more complex when parties are represented by lawyers and union officials. It is not uncommon for representatives to try to challenge the investigation process or make demands upon the investigator thereby requiring a correct and measured response.
An experienced investigator will have the ability to adequately plan the investigation process, analyse large amounts of evidence and deal with any difficult situations that may arise during the process.
Additionally, the engagement of an external investigator demonstrates to all the parties involved that the matter is being treated seriously and there is a commitment to independently determining what has occurred.
Investigations can take a tremendous amount of time. Some investigations might take months or even longer. An internal HR/IR team may not have this amount of time to conduct a large investigation due to having many other work priorities. An external investigator will be able to dedicate more time to an investigation than an internal HR/IR team member.
5. Practical recommendations from an outsider perspective
An investigator is sometimes asked to provide recommendations as part of the investigation report regarding a range of matters such as workplace culture and organisational improvements. The investigator is in a unique position after having interviewed people and assessed the evidence. An experienced external investigator is able to bring their years of experience conducting investigations and provide these recommendations from an outsider perspective.
Mapien has experienced investigators who can provide pragmatic recommendations as part of the investigation report. They can also utilise the experience of Mapien organisational psychologists to come up with bespoke recommendations for even the most complex people matters.
Investigations gone wrong
Getting investigations wrong can not only damage employee engagement and morale, it can also be costly. In Nathan MacDonald v Whitehaven Coal Mining Ltd  FWC 838 (24 March 2021), an employee was reinstated and back paid for six months due to an inadequate investigation.
Another example is found in Oliver v Bassari (Human Rights)  VCAT 329 (28 March 2022) where a Beauty Therapist was awarded $150,000 in compensation after a sexual harassment complaint was not properly investigated.
There are many other examples of deficient investigations costing organisations tens of thousands of dollars or leading to reinstatement. Adverse action claims can potentially be more costly.
Take home points
Investigations are a critical undertaking for organisations, and they can be time consuming, complex and can lead to poor outcomes for organisations if they are not done right. While internal HR/IR teams will often have the capability to run an investigation, it might not be the best use of their time. Outsourcing complex investigations allows internal HR/IR professionals to focus their energies on the implementation of people strategies to enable the delivery of the business plan, while allowing them to maintain their relationships with key stakeholders.