‘Best practice’ workplace investigations can help Australian employers avoid potential risks

Some recent cases in Australia have involved mishandling of sexual harassment and toxic workplace complaints and investigations, alleged cover-ups of senior executive misconduct and unsatisfactory complaint handling within organisations.

This might seem relatively surprising given changing community and business standards, not to mention the recent legislative reforms that place a positive duty on businesses to eliminate unlawful behaviour relating to sexual conduct in the workplace or in connection to work.

If you speak to business leaders, seasoned HR professionals and people managers, they will usually say that their organisation has addressed the positive duty and has robust systems for handling sexual harassment and toxic workplace behaviour.

However, this response may be analogous to when some employers previously proclaimed they did not have issues with underpayments of employee wages, only to find out some time later that they had been underpaying employees over many years, albeit, in many cases, unintentionally.

So, what’s missing? Why does it seem organisations are still getting it wrong?

The Australian Human Rights Commission published guidelines in August 2023 that included practical examples of what employers should proactively be doing to comply with their positive duty to eliminate unlawful sexual behaviour in the workplace. The guideline makes it clear that it’s simply not enough for organisations to undergo a box-ticking exercise.

The guidelines comprehensively indicate that companies with strong culture and governance can effectively prevent and respond to workplace misconduct by:

• having clear complaint handling procedures that are well-known within the organisation, so employees feel safe to report unsatisfactory workplace behaviour at an early stage;
• creating support mechanisms for workers to feel safe and assisted by the organisation in raising issues about unsatisfactory workplace behaviour. For example, this could look like internal support through nominating workers or asking for volunteers to act as contact officers, and creating peer support networks and ensuring they’re trained in receiving disclosures of relevant unlawful conduct and harm. Organisations could also engage external specialist support through work-funded Employee Assistance Programs; and
• ensuring investigations into allegations of unsatisfactory workplace conduct are undertaken in a fair and consistent manner to provide workers with confidence that their organisation is committed to creating a safe and inclusive work environment.

There are steps that boards, senior managers, HR, legal and risk professionals should take, and some best-practice tips they can follow in relation to complaint handling and investigations to ensure the safety of their workers. 

This should help employers and HR avoid any reputational damage that their organisations may face when these issues are not managed to the high standards now expected by both workers, the government and the broader community.

Handling complaints appropriately

While best practice will look different in different businesses depending on organisation size, operations – for example, remote or international – and HR and employee relations capacity, employers should generally be implementing the following best-practice steps to ensure complaints are handled appropriately:

Consult with workers

As persons conducting a business or undertaking, employers must, so far as reasonably practicable, consult with workers - which includes employees, contractors, volunteers and anyone else who carries out work for the business - who are or are likely to be directly affected by a health and safety matter.

Inevitably, many complaints about unsatisfactory workplace behaviour relate to safety matters, including psychosocial hazards. 

In engaging and consulting with workers about complaint handling measures and mechanisms, organisations are able to obtain real and practical knowledge and experience to make improved and informed decisions about how to handle complaints in a safe manner.

Implement a workplace policy

The policy should set out in clear, concise and plain language for workers to understand:

• the who, what, where, why and how of making a complaint or raising a concern - including various options based on the level and rank of the person being complained about and the information required;
• that the process will be undertaken as confidentially as possible, explaining that information may need to be disclosed on a need-to-know basis;
• that their complaints or concerns will be taken seriously;
• what immediate action will be taken by the organisation after a complaint or concern is raised, including expected time frames;
• ·options available to the worker to ensure their safety and wellbeing – for example, if required, temporary adjustments to reporting lines and access to leave;
• informal and formal options available to resolve the complaint where appropriate;
• an outline of possible consequences if misconduct in breach of an organisation’s policy or law is found to have occurred; and
• where workers can provide feedback about the policy.

Implement a policy for bystanders

This policy should set out the organisation’s expectations for workers to report any inappropriate conduct witnessed as a bystander.

Ensure regular communication

Organisations should regularly communicate the existence of relevant policies and procedures to employees and where they are located.

This should not be an exercise limited to the induction and starter packs for new workers, but part of a wider HR strategy to ensure workers are embedded with knowledge about the organisation’s expectations and the rules that govern the workplace.

Ensure easy access to information

The complaint handling policy and procedures should be easily accessible and publicised to all workers - for example, located on the organisation’s intranet, on staff notice boards and provided as part of the welcome pack for new workers. The regular communication, mentioned above, should capture this point.

Provide appropriate training

Provide tailored training to all workers, and separate training specifically designed for managers and those who have people management responsibilities, to ensure they:

• understand the obligations they have in the complaint handling procedure;
• equip them with the knowledge and information to discharge their obligations; and
• know how to respond and/or escalate the matter appropriately, by testing them on the training content.

The training for everyone may be conducted by way of an interactive learning module or workshop that simulates different scenarios and guides decision-making depending on the type and severity of the allegations, and tests employees on the content covered.

Organisations may also like to consider offering mental health first aid training to equip front-line managers with recognising and responding to workers experiencing a mental health crisis arising from workplace conduct experienced or witnessed by workers.

Handling investigations appropriately

Once a complaint or concern has been reported, and the organisation is aware of an issue, appropriate action must be taken by the organisation within a reasonable timeframe, and taking into account its available resources.

This is because there is a potential hazard that the organisation has been made aware of and needs to address promptly. Failing to act swiftly is the equivalent of leaving hazards such as a puddle in the middle of a shopfront, or a loose screw in a piece of machinery, meaning it often becomes too late to act.   

Appropriate action may take the form of a factual investigation to determine whether the allegations are more likely to have occurred than not, on the balance of probabilities, and should involve at least the following steps:

Assess whether any workplace adjustments are required

Depending on the nature of the allegations and proximity of working relationship between the complainant and the alleged perpetrator, workplace adjustments may need to be made to ensure everyone’s safety while the investigation is being undertaken.

For example, temporarily changing reporting lines, directing one of the parties to work from home or, in serious matters, suspending the alleged perpetrator from work until further notice.

Determine how the investigation will be conducted

Subject to the seriousness of the allegations, it may be appropriate to conduct the investigation internally, by way of desktop review, etc; or seek legal advice; and/or engage an external third party to conduct the investigation.

Whatever way the matter is to be investigated, the investigator must be impartial, which means the investigator should not have any conflict of interest (either actual or perceived) – such as a former manager or close colleague – with the parties involved in the complaint; and should ideally be trained with undertaking investigations.

Ensure clear communication

Communicate appropriately, and as applicable to all relevant parties, that a complaint has been made, who will be undertaking the investigation, what the investigation process will involve – including estimated timeframes – and what some of the potential outcomes could involve.

This may also involve strategic communications with relevant teams to ensure confidentiality is maintained and the organisation’s commitment to a safe and inclusive workplace environment is highlighted.

Communication is key throughout the investigation process to limit prolonged uncertainty and anxiety for all parties involved.

It provides assurance to complainants that their complaint is being treated seriously and managed appropriately, and keeps alleged perpetrators abreast of when findings are expected to be made.

Review policies and procedures relating to complaint handling and investigations     

If the organisation has committed to a policy or procedure in relation to how complaint handling and investigations will be undertaken, these must be complied with, as all employees will expect that the process they have been notified about will be followed.

Conduct fair and objective interviews with the parties involved

Give all parties the benefit of the doubt. Everyone involved should be treated in a fair and uniform way. Questions should be prepared in advance so interviewees will be able to tell their side of the story fully. Leading questions such as, “You knew what you were doing was wrong, didn’t you?”, should be avoided as they may lead to a biased response.

Where additional witnesses are identified during interviews, care must be taken to determine whether or not they should be spoken to, to ensure all available evidence is collected before any factual findings are made.

Keep comprehensive records

Keep a clear and comprehensive record of all steps taken, including keeping all interview transcripts, notes and evidence collected.

Prepare an investigation report

In many instances, the investigator should prepare a report at the conclusion of their enquiries. The report must contain the findings of fact and, if asked by the organisation, make recommendations and/or a determination.

If the investigation has been conducted in order for the organisation to obtain legal advice, the report should only be provided to the ultimate decision-maker(s) and not to any other parties.

Communicate the investigator’s findings

The organisation should, after receiving the investigator’s findings, communicate those findings and any decision appropriately to all the parties involved.

The ultimate decision maker should ensure the final decision is proportionate to the findings made. Where adverse findings and outcomes are proposed, the organisation should provide the alleged perpetrator with the opportunity to respond before a final decision is made.

This ensures the alleged perpetrator is given a procedurally fair process to provide any additional information that may not have been disclosed and could therefore impact the findings and outcome proposed.

What should employers and HR do next?

It’s clear that workers and the wider community are increasingly placing a higher standard on businesses and organisations to provide a safe and inclusive work environment.

Accordingly, it’s more important than ever that organisations review their governance structure to ensure they have an effective ‘prevention and response plan’.

Such plans should include adequate complaint handling systems and ensuring workplace investigations are conducted correctly.

As has been seen recently, failure to do so has far-reaching consequences, not only in damaging the organisation’s reputation with the public, but internally damaging workplace culture and creating a loss of trust in leadership, which will take significant time and resources to repair, if they are, indeed, repairable at all.

Co-written by Jessica Park of Pinsent Masons.

This article was originally published on HRMOnline.