No employee likes to hear they’re being investigated, but employers have an obligation to let staff know when a complaint is made about them. HRM asked an expert how to have that conversation.
Earlier last month, the Fair Work Commission (FWC) reviewed a case where an employee was dismissed after a workplace investigation into an allegation about his inappropriate and aggressive behaviour. The FWC upheld the dismissal but reprimanded the employer because it had failed to give the employee a chance to respond to the allegations made against him.
The employee in question was accused of throwing objects, including a chair, swearing at a manager and removing his shirt and yelling “let’s have a go” at another employee.
The HR manager interviewed all witnesses after the event and discussed the incident with the organisation’s CEO before deciding to dismiss the employee.
The HR manager told the FWC he did not wish to speak to the employee about the incident because he thought the employee was angry and that “it would not go smoothly”.
While FWC deputy president Tony Saunders agreed there was enough evidence to prove that the alleged behaviour took place, he said this did not amount to “an acceptable reason for failing to notify and provide an employee with an opportunity to respond to serious allegations”.
Saunders said it was not appropriate to act purely on the accounts of other employees and the employer had failed to follow procedural fairness.
What is the correct procedure in this instance? And how can HR professionals make sure they are meeting with potentially hostile or violent employees in a safe way? HRM asked Jason Clark, workplace investigator and director at dispute resolution organisation Worklogic, to share his expert advice.
The opportunity to respond
Clark says a key feature of procedural fairness is hearing both sides of an argument. This is not a courtesy to the employee, it is a requirement in the Fair Work Act. If an employee isn’t given an opportunity to respond to allegations being made against them before being terminated, the employer could risk opening itself up to an unfair dismissal claim.
According to the Fair Work website, the process doesn’t have to be formalised but rather applied in a “common sense way”.
“The person who is alleged to have engaged in inappropriate conduct must be given the opportunity to respond to the allegation and provide their version of events,” he says.
In 2012, the FWC reviewed an unfair dismissal claim from an employee accused of failing to comply with a reasonable direction to return a company car. The employee allegedly became aggressive when asked to return the vehicle and was terminated in the same meeting where she was made aware of the complaint.
Like the case above, the FWC found the employer had a valid reason to dismiss the employee, however, because the employer decided to terminate the employee before giving them an opportunity to respond, the termination was ruled as an unfair dismissal. While the FWC didn’t order the employer to reinstate the employee, the employer was hit with a $17,000+ compensation payment.
When offering employees the opportunity to reply, employers are obligated to present all of the evidence collected during the investigation, including any reports or eye witness accounts particularly if they contradict the employee’s version of events.
Clark says employees might also need to be informed which witnesses were interviewed as part of the investigation, which is something to keep in mind when interviewing witnesses. Any witnesses must be told their involvement could be revealed to the respondent prior to being interviewed.
Clark says this can deter some witnesses who are “well and truly attuned to a fear of reprisal”.
“This is something that the organisation has to manage in real time throughout the investigation process.”
Having the difficult conversation
No one likes hearing that their conduct is being investigated, or that a complaint has been made against them, so it’s likely they will become emotional when you first deliver the news.
Be prepared for that fact, warns Clark, and have a plan in place to mitigate it and present the employee with clear facts. In the case above, the HR manager was not prepared and failed to follow due process as a result.
Having difficult conversations is a common part of HR’s role. Make sure you’re doing them properly with AHRI’s Having Difficult Conversations Course.
Clark has a couple tips to prepare.
“Firstly, stick to what’s being alleged and don’t buy into the emotional side. You can recognise that the person is upset, but try to stay above that.”
Secondly, while the employee should be permitted to bring a support person into the meeting, the investigator has that same right. This person should be someone else from HR who is not connected to the case – an inappropriate choice, for example, would be the employee’s line manager. The employee must also agree to that person being present in the meeting.
“If it cannot be HR then perhaps it could be another senior manager from a different part of the business, or someone who is senior enough but not likely to be a decision maker about any disciplinary action arising from any proven behaviour.
“It is important that decisions makers are, where possible, kept separate to the investigation process.”
How to approach risk management
If there is a concern that the employee will react aggressively, Clark suggests assessing the risk prior to the meeting and taking steps to mitigate it.
“For example, I was in an interview recently with a respondent who became physically animated and it was just me in the room. I had a feeling that he was going to be like that, so I positioned myself closest to the door,” he says.
“We also record all our meetings, so I made sure his actions were on record by saying something like, ‘I notice you’re raising your voice and you’re about to start moving your arms around.’ When things went pear-shaped, I ceased the meeting and made sure he was well and truly clear of the building before I left.”
Clark says he always lets a colleague know when he is about to go into an interview then follows up when he’s out to let them know how it went. This is not only important to account for your own physical safety, but also your psychological safety.
“We deal with varying types of heightened emotion and you don’t want to internalise that. Talking with a colleague allows you to debrief from the encounter. It’s also a way to think through what happened and what you’ve learnt.”
At the end of the day, Clark says if you’re not prepared to have a meeting with the employee and give them the opportunity to respond to an allegation then you should consider bringing in an external investigator.
“Unfortunately, it is the nature of workplace investigations or managing workplace grievances that you are going to come face-to-face with heightened emotions. It is not appropriate to say, ‘well, I just don’t want to deal with that sort of behaviour’.
“There won’t ever be a scenario where you’re allowed to circumvent the procedurally fair process simply because you’re not comfortable dealing with that sort of behaviour. If you don’t feel comfortable doing it, then you need to find someone who can.”