It’s an unfortunate reality that workplace investigations often need to occur following an end-of-year party. Here are some workplace investigation tips to keep in mind.
‘Tis the season for merriment and joy, but what happens when the holiday cheer takes an unexpected turn?
Following an increased focus on preventing sexual harassment and protecting employees’ psychosocial safety over the past couple of years, most employers are well-versed in the steps they have to take ahead of their end-of-year party. Appropriate service of alcohol, the right level of supervision, issuing cautions and clearly communicating expectations prior to the function about unacceptable behaviour are now par for the course.
But what should employers do if, despite taking all reasonable preventative steps, they receive a complaint about an alleged incident at the end-of-year party?
In this article, we will guide you through some practical steps to deal with the fallout from an incident, including complaint handling, workplace investigation processes and appropriate disciplinary action.
“Witnesses are the backbone of any good investigation. Seek out those who might have seen or heard something unusual.”
Deck the Halls with complaint handling
Just like selecting the perfect ornament for the Christmas tree, choosing the right level of investigation requires careful consideration. Some allegations may require termination, while others may simply warrant a gentle warning.
So, before you embark on your investigative journey, pause and gauge the seriousness of the allegations, considering your approach meticulously.
Once an allegation has been made, consider the following framework:
1. Victim support: As with all complaints of misconduct, an employee who complains about an incident at a Christmas party should be treated fairly, empathetically and given support.
2. Initial assessment: If alcohol was served at the function, any initial assessment of the incident should find out to what extent the complainant and the respondent were under the influence of alcohol.
This should include asking the complainant about how much they had to drink, and their perspective about how much the respondent had to drink.
3. Suspension: While no assumptions should be made about the truth of the complaint, if the allegations of misconduct are serious, such as if they are of a sexual nature, the respondent may need to be suspended from work while the complaint is investigated. This is because the safety and mental wellbeing of the person who made the allegation should come first and foremost. Among other things, this approach encourages a speak-up culture where victims feel supported and encouraged to voice concerns about toxic workplace behaviour.
4. Confidentiality: The complaint should be kept strictly confidential, including by the complaint and respondent. In circumstances where there are many possible witnesses to the alleged incident, strict confidentiality should be implemented so rumours aren’t spread, which could impact your investigation, and so neither the complainant nor the respondent is gathering support for their version of events.
Workplace investigation tips
In the spirit of yuletide fairness, your plan should follow the principles of procedural fairness.
Start by planning the timetable and mapping the investigative journey. As you unfold the plan, list the key players required for each step.
We recommend interviewing the complainant and then the respondent first to identify what, if any, aspects of the complaint can be substantiated on the basis of agreed facts or admissions.
Secondly, identify any other sources of reliable information, such as CCTV footage. Then, if there is a reduced list of outstanding allegations to be substantiated, identify specific witnesses who were said to have seen the particular allegation.
Witnesses are the backbone of any good investigation. Seek out those who might have seen or heard something unusual. The more eyes and ears you have, the better your chances are of uncovering the truth.
It also is important to only interview people who are strictly necessary to obtain relevant information, to keep the matter as confidential as possible. They should be reminded that they would be in breach of their employment obligations and, where applicable, your company’s policies if they were to discuss this matter with their colleagues.
It’s also wise to consider engaging an external investigator. Many organisations are not trained or equipped to conduct workplace investigations. A proper investigation must be dealt with promptly and may take a significant amount of time to conduct. An investigation that is conducted internally may also be subject to claims of bias and lack of transparency or impartiality.
Making an informed decision
Once you have gathered all the evidence, findings can be made on the balance of probabilities.
When weighing and balancing evidence, the effect of alcohol consumption on recollection should be considered. This will include an assessment, as objectively as possible, about how each person’s recollection may have been impacted.
Once the investigation is completed, it is not the investigator’s job to make any decision about disciplinary actions. That role will fall to someone else in your organisation’s leadership team.
When determining any disciplinary action, the fact that a person had been drinking should not reduce their culpability or responsibility for their actions. To the contrary – having drunk too much at the party may weigh against them, in circumstances where they were at a work function and should not have drunk to excess.
Otherwise, the same standards of behaviour apply at an end-of-year function as in the office. A comment or action engaged in which would constitute misconduct in the office also constitutes misconduct if done at the end of year party. Therefore, disciplinary action should follow this same principle.
While it’s important to be across the details of a post-event investigation, putting preventative measures in place ensures everyone has a happy and safe festive season which is remembered for the right reasons!
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