A common mantra of those who conduct workplace investigations is that just as people have a right to complain, those they complain about have a right to respond. It is the investigator’s task to moderate that process, to ensure complainants are given an opportunity to have their allegations heard and that the respondent is given the time and necessary details in order to formulate a response.
While a good investigator can ensure that both parties receive procedural fairness during the process, they usually cannot influence the personal and professional toll that investigations can take on the participants (including on the witnesses). While complainants derives a certain degree of satisfaction and comfort from the fact that their grievance is being examined, respondents may feel like they are under attack, that the “mud will stick” or they have been left out in the cold.
Once a matter is referred to an investigator, it is not uncommon for HR practitioners to distance themselves from the parties involved in an effort to reinforce the neutrality of the investigation process. While this is desirable and at times necessary, it means that the parties may be left without the usual levels of support and communication, even from their colleagues. Complainants have the benefit of having communicated with HR, a contact officer or their union about their complaint and their options. By contrast, when respondents are informed that there has been a complaint made against them, this may be the last time they have any meaningful communication with HR, save for perhaps being offered the organisation’s employee assistance programme (EAP).
Whilst some investigations are quick, the reality is that investigations can drag on for weeks and sometimes months. It is critical in these circumstances that an organisation keeps a close eye on the welfare of the parties. Respondents in particular may feel they are the perceived “wrongdoer” and consequently be less ready to ask for assistance or admit to the stress they are feeling.
It will therefore be important during the course of an investigation to check in regularly with the complainant and respondent. HR practitioners and managers should not only provide them with progress reports, but enquire after their well-being. A party may require some gentle prodding to use EAP or seek external counselling support.
Another practical tip is for the organisation to allocate support persons from within the organisation. For example, the internal support person for a respondent might be someone from the respondent’s peer group, who is sensible and emotionally intelligent in terms of providing support.
The person should be unconnected to the complaint at hand. In some organisations the support person could be a trained contact officer, or it might also be a union representative to provide that type of support to a complainant. It will be important for HR to be, and be seen to be, even-handed.
Open channels of communication need to be encouraged so that parties can escalate their concerns when necessary. A nominated support person should keep regular contact with them, even when they are at home.
As much as employers may hope that it is “business as usual” during an investigation process, this is often not the case, and there are many issues to manage. The welfare of the complainant and the respondent to an investigation should be high up on the list of priorities.
If the Labor Government follows through on its promise to allow bullying complaints to be made to the Fair Work Commission, we are likely to see many more complaints requiring investigation and many more employees requiring support. By taking steps to ensure access to a support person throughout the investigation, and by making regular progress reports, employers can to some extent reduce the stress experienced by those involved, and avoid a worker’s compensation claim or even an unwelcome resignation.
Sarah Rey and Laura Douglas are partner and lawyer respectively at Justitia.
This blog post is intended for general guidance only. It should not be used as a substitute for legal advice.