When it comes to workplace investigations, an employer’s good intention sometimes isn’t enough. In a recent decision, the Fair Work Commission held that an employer’s otherwise well handled investigation into complaints made against an employee was unfair because the employee (who was the subject of the complaint) was only interviewed after findings in the investigation had been made. Although the employee had an opportunity to respond to the findings before a disciplinary decision was made, this opportunity was not “genuine” because the employee wasn’t given a chance to explain his conduct.

To ensure workplace investigations meet best practice standards, and to protect themselves from liability in a range of areas, employers should:

• Be thorough: plan the investigation. Particularise allegations made by the complainant.
• Communicate with fairness in mind: don’t make assumptions. Listen, put allegations to the accused, and give all parties an opportunity to respond before a finding is made
• Report on your decision: detail the steps you have taken and why.
• Use findings proactively: could the findings uncovered in the investigation be indicative of a wider problem in the workplace? Could they be used to inform behaviour and culture training to prevent future incidents?
• Maintain confidentiality and an open, non-victimising culture: this is important from both a legal perspective and to ensure trust in the investigation process.

Handled properly, workplace investigations not only ensure employers are prepared should a worker pursue a legal claim arising out of the investigated conduct, but have the potential to prevent workplace issues from becoming legal issues in the first place.