HOW TO CONDUCT A 'FAIR' WORKPLACE INVESTIGATION OUT OF by cln12100

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									 PEOPLE




 HOW TO CONDUCT A
 ‘FAIR’WORKPLACE
 INVESTIGATION OUT OF AN
 EMPLOYEE COMPLAINT
 By Chris Delaney*

 OFTEN EMPLOYERS A FACED with having to                 and authenticity of which is not in question,           Collect all Relevant Documents
 investigate a complaint from one employee              or where offensive conduct between co-                  All relevant documents should be identified
 about the behaviour of another. It may be an           workers has been directly observed).                and reviewed promptly. Each person involved in
 allegation of bullying, harassment or                • Whether special expertise may be                    the investigation should be asked whether they
 discrimination. Whatever the allegation,               necessary in order to reach a conclusion            have any documentation that might be helpful
 employers need to deal with it properly and            (e.g., medical or financial information).            in addressing the issues. Relevant documents
 with due process. Failing to do so, or failing to                                                          will typically include the personnel file of the
 be thorough and fair could have very serious         2. PLAN THE INVESTIGATION                             individual accused as well as relevant
 ramifications for the employer if the matter             A poorly planned or ineffective investigation      correspondence, e-mails, medical records, or
 ends up in proceedings before an industrial          may be worse than no investigation at all.            even hand written notes.
 tribunal, Court of Anti Discrimination Board.
     The following guide should assist employers           Be Flexible                                          Keep Comprehensive Files
 to understand, in a general sense the process             The employer needs to be prepared to                 Files should typically include copies of all
 for dealing with such complaints and the             conduct an objective, fair and thorough               relevant company policies; relevant documents
 record keeping necessary to prove that the           investigation. The investigation planning             from the personnel files of the complaining
 investigation was fair and thorough.                 needs to be flexible. For example, the scope               employee, the accused, and co-workers or
     Regardless of the complaint always seek          of the investigation may need to be expanded          other employees where appropriate; records of
 professional advice before commencing any            if the evidence leads to allegations that people      prior complaints made by the complaining
 investigation.                                       other than the accused harasser are engaging          employee; any prior complaints against the
                                                      in similar conduct, or that other employees           accused; a written plan identifying who will be
 1. ASSESS WHETHER A FORMAL                           have been subjected to harassment by the              interviewed and the sequence of those
     INVESTIGATION NECESSARY                          same individual.                                      interviews; and a chronology of relevant events.
     With any complaint, the first matter to be                                                                  The written plan and a running chronology
 decided is whether the complaint warrants a              Select the Investigative Team                     should be updated as necessary as the
 formal investigation. Some problems can be               Determining who should conduct the                investigation progresses. During the
 resolved quickly and informally without an           investigation is an essential part of any planning    investigation materials to be added to the
 investigation, and it is usually in the best         process. It is often valuable (but not often          investigative file will include notes of interviews
 interest of both employer and employee to            possible) to have two competent investigators         with employees; signed statements from the
 attempt a resolution as quickly and effectively      conducting any investigation of substance. One        complaining employee, the alleged offender,
 as possible. The questions to be considered          might take the lead during investigative              and any witnesses; any memoranda regarding
 should include the following:                        interviews, with the other taking careful notes. It   the investigation prepared by the investigators;
 • Is the issues are simple or complex?               is also important for the investigators to be         and the investigators” final report detailing the
 • Does the complaint involve just one                unbiased and objective, and that the                  conclusions and recommendations.
     employee, or many?                               complaining party be comfortable with the
 • Whether the complaint stems from a single          investigators. Obviously, a female complaining            Determine Any Other Resources Needed.
     incident, or a pattern of conduct.               of sexual harassment may be more comfortable              From the beginning clearly identify the issue
 • Is the alleged behaviour is minor, moderate        talking with a female investigator, but regardless    or issues the employee is raising, identify the
     or major in significance.                         of the race or gender of the investigator, it is      company's obligations (legal and organizational)
 • Are all the facts necessary for resolution are     important to obtain confirmation from the              with respect to the issue(s) presented, and
     known (e.g., where the sole basis of the         complaining party that he or she is comfortable       determine what other resources may need to
     complaint is a single offensive letter, voice-   with the assigned investigators.                      be brought to bear on the issue(s). Additional
     mail, e-mail or other document, the source                                                             resources you may want to consider include:
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                                                                                                                                               PEOPLE


• Public relations, if there is a potential for         place, who will conduct the interview, what             complaint of inappropriate behaviour, and
  adverse publicity about the situation.                questions will be asked and what statements             that cooperation includes maintaining the
• Legal obligations, if the allegations involve         will be made at the start and close of the              confidentiality of any information provided,
  criminal conduct.                                     interview, and how you will document both the           refraining from discussing the complaint or
• Private investigators, if surveillance or             information obtained from and the instruction           the investigation with other employees or
  investigations outside the workplace are              and assurances provided to the interviewee.             persons outside your organization.
  needed, or if there is no one within the                                                                    • That any attempt to influence the outcome
  employer's organization well-suited to                   The Setting                                          of the investigation by discussing it with
  conduct the investigation.                               In order to protect privacy and                      others violates company policy and can be
• Legal help, for assistance in determining the         confidentiality, and to avoid embarrassing any           the basis for disciplinary action.
  employer's obligations, assistance in                 party to the investigation, you may want to           • That retaliation against a participant in the
  planning the investigation, protecting                meet off site. You are also more likely to get          investigation is prohibited, and should b
  sensitive information, or the like.                   candid disclosures if the setting is informal and       reported immediately to you or some
                                                        comfortable. Avoid sitting behind an imposing           specifically designated person.
    Who to Interview                                    desk, try sitting at a round table or in a less
    Typical with harassment or discrimination           formal setting unless you want to develop a              Allow Sufficient Time for a Thorough
investigation will often occur before any               tone of seriousness and professionalism.              Investigation
planning has taken place, and the employer will                                                                  The employee being interviewed should
have little control over the initial interview of the        The Questions                                    never be given the impression that there is a
complaining party, or who conducts the                       Again, there is no substitute for preparation.   time limit on the meeting. Employees with a
interview, as these matters often arise without         It is too easy to overlook an important issue if      significant stake in the outcome of the
warning.                                                interviews are conducted without careful focus        investigation, such as the complainant or the
    Regardless of who first learns of the                on the issues to be addressed.                        accused, will feel that the employer is not
problem, there may be a need to conduct one                                                                   sufficiently concerned about their rights, and
or more follow-up interviews with the                       Identifying the Issues                            may use any haste in the investigative interview
complaining party. Other persons to be                      It is usual for employees in an investigative     to portray the employer as callous or malicious.
interviewed will typically include:                     interview to be nervous, and often tentative
• The alleged offender.                                 about what is taking place. It is preferable to           Maintain Professionalism
• Anyone who directly observed a relevant               provide a brief explanation at the start of the           A good interviewer will remain calm and in
    incident.                                           interview regarding what is going on and what         control throughout the interview. In a
• Other witnesses with relevant information,            is expected of the interviewee. The content of        harassment investigation, there is no place for
    whether identified by the complaining                your opening statement should relate to the           joking, sarcasm, or threats, and the interviewer
    employee or the accused.                            role of the person you are interviewing, whether      should avoid expressing any opinions about
• Creators of relevant documents.                       it be the complainant, the accused, or                the information obtained. The goal is to obtain
• The supervisor of the complaining employee            witnesses, but in general should cover the            information, not to provide editorial comment.
    and/or the alleged offender.                        following:
• People whom the complaining employee                  • Appreciate for their time and cooperation.              Focus on the Facts
    has asked you to interview.                         • A brief explanation of the nature of the                Be prepared to explore issues or complaints
• People whom the alleged offender has                      matter you are investigating                      which come to light in the investigation, but
    asked you to interview.                                 (e.g., a claim of race discrimination, an         guard against allowing the investigative
    Avoid going on fishing expeditions, and limit        alleged theft, a verbal or physical altercation,      interview to turn into a general discussion of
the number of interviews to only those                  etc.).                                                grievances. The issues you will need to explore
reasonably determined to have relevant                  • Why the person has been included in the             may also include the conduct of the
information. Be prepared to conduct follow-up               investigation                                     complainant (in order to determine whether
interviews as necessary.                                    (e.g., that they have been identified as           allegedly offensive conduct was welcomed),
                                                        someone with a complaint, have been accused           but your primary focus should be on whether
3. PRELIMINARY/INTERIM ACTION                           of harassment or other misconduct,                    the allegations against the accused individual
    Once the basic allegations and issues have              – or have been identified as someone who           are true. Undue preoccupation with the
been identified, determine whether there is a            might have knowledge relevant to the                  reputation or conduct of the complainant can
need for interim action pending completion of           allegations under investigation).                     be dangerous.
the investigation, perhaps to protect the health        • That the matter is serious, and that the
and safety of any employee, or to protect the               company has a commitment or obligation                Make Accurate Notes
integrity of the company's policies or                      to investigate the claim.                             Take the time to write your notes legibly,
investigation. Such action may include:                 • That the information provided by the person         and go over your notes before you complete
• Suspension of the alleged offender.                       will be kept as confidential as possible, and      the interview to make sure that you have
• Temporary transfer of an employee (but be                 disclosed on a need-to-know basis.                accurately recorded all relevant information
    reluctant to suggest that the complaining           • The company has a firm policy prohibiting            obtained, and have covered all issues. There
    employee be transferred, even temporarily,              retaliation against any participant in the        are a variety of ways to document the
    unless the complainant requests this, or                investigation, and that any perceived             information provided by the interviewee,
    agrees that a temporary transfer may be                 harassment will be reported to you (or some       including having the interviewee provide you
    necessary).                                             specific individual) immediately.                  with a written statement covering the issues
                                                        • That no conclusions will be made until all          discussed, but there is no substitute for good
4. INTERVIEWS                                               the facts have been gathered and analysed.        note taking. Your notes should be dated, and
   Thorough preparation is essential. It is best        • That each employee is expected to                   should clearly indicate the identity of the
to carefully select where the interview will take           cooperate fully in the investigation of any       interviewer(s) and interviewee.

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                                                                                                                          SECURITY INSIDER FEB/MAR 2010// 37
   PEOPLE


     Keeping Records                                statement, a (flexible) list of questions you, and     else?’
     There is probably no single best method for    a checklist of instructions appropriate to the      • Before concluding the interview, be sure
 documenting the interviews, but the goal           person being interviewed.                             you have everything the witness knows
 should be to have the complainant, the                                                                   about the issues. Go over your notes,
 accused, and each key witness confirm, by               Adopt Accepted Methods                            make sure they are comprehensive, and
 their dated signatures                                 Let the employee talk freely, including           follow up on any items needing clarification.
     (1) the accuracy of the information they       ‘venting’ about feelings. Clarify: restate the      • Ask the employee if there are any questions
 provide, and                                       problem or information to make sure you and           you have not asked which he or she feels
     (2) the receipt of any instructions given to   the interviewee are in agreement about what           you should have asked.
 them.                                              was discussed. Simplify. If needed, break           • Conclude the interview with your
     Some complainants or witnesses may be          down a series of problems or statements into          instructions regarding confidentiality,
 reluctant to provide a written statement or sign   manageable parts. A good interviewer will             cooperation, non-retaliation, the reporting
 anything you might prepare, in which case          also control the natural tendency to talk too         of further problems, and with a note of
 documentation of the information obtained          much themselves, and will avoid hinting at            thanks for the employee's time and co-
 and instructions given will need to be in the      the ‘right’ answer to a question. Avoid               operation.
 form of statements signed by the interviewers.     interrupting the employee, cutting off
 Regardless of method used,                         information or supplying a conclusion to a          6. SUGGESTED QUESTIONS
     there are two key components of the            sentence. Use silence to advantage;                    Questions For the Complainant
 interview documentation:                           remaining silent after the employee finishes a          Keeping in mind that you may need to
                                                    statement may cause the employee to                 conduct follow-up interviews, the primary
     Drafting Statements                            volunteer more information because he or            focus of the initial interview should be to get
     A record of the issues raised, the             she feels compelled to fill in the gap caused        the facts: who, what, where, when, why and
 employee's version of what happened, who           by silence.                                         how.
 was involved, witnesses, dates, the employee's                                                         • What is the problem? What happened?
 suggestions as to the conduct of the                  Identify the non verbal Signals                  • Who was involved?
 investigation and the resolution of the issues,       Observe ‘body language’ communicated             • When and where did the incident take
 etc. This can be in the form of (1) a statement    through posture, arm position, eye contact or          place?
 prepared by the witness at your request, (2)       avoidance, and the like. Look for signs of          • Where there any witnesses? If so, who?
 your own notes (perhaps typed shortly after the    nervousness such as sweating or                     • Was the incident isolated, or part of a
 interview), or (3) as a component of the           restlessness. Are questions answered directly          pattern?
 Confirmation/Instructions memo (see below),         or evasively? A firm denial may be more              • Has the employee talked to anyone else
 but in any event should be dated and signed        credible than a ‘why would I do that?’                 about the situation? If so,who?
 by the interviewee (with adequate opportunity      response.                                           • Has the employee spoken to anyone in
 to make corrections or additions).                                                                        management about the issue?
                                                       Use Open Questions                               • If so, who, and what was their reaction?
     Confirmations/Instructions                         Plan the order of your questions, stick to       • Is the employee aware of any documents
     A record, to be signed by the employee, of     your plan, and be comprehensive. At the                or things relevant to the situation?
 the confirmations obtained from the employee,       same time, be flexible, following up on any          • Has the employee kept any notes, diaries
 and the instructions given. Components of the      new issues raised.                                     or records relevant to the complaint?
 employer-generated confirmation memo                • Ask open-ended questions, avoiding                • Is the interviewee aware of any other
 should typically include some or all of the           putting words into the person's mouth.              employees with the same or a similar
 following acknowledgements, as appropriate to         Start with broad questions, and move to             concern?
 the type of investigation:                            more narrow issues.                              • Did the employee participate, and to what
     The identity of the investigators, and         • Save unfriendly or embarrassing questions            degree? How?
 confirmation that the interviewee is comfortable       until the end of the interview. Beginning        • What was the employee's relationship with
 with their impartiality.                              with the ‘tough’ questions may cause the            the alleged offender?
 • Confirmation of the issues.                          interviewee to become defensive.                 • Has the employee had any other problems,
 • Confirmation by the employee that the             • Do ask the tough questions. Even if the              on or off the job, with the accused
     information provided is true,                     situation is uncomfortable for you or the           individual(s)?
 • correct and complete.                               interviewee, make sure you are satisfied          • What does the employee think the accused
 • A brief summary of the investigative plan,          that you are getting all the information the        might say about the
     and that no decisions will                        witness has.                                        allegations?
 • be made until the investigation is               • Ask questions which are designed to give          • How has the incident affected the
     completed.                                        you relevant facts, avoiding questions              employee (and what has the employee
 • An outline of the employer's expectations of        which will elicit opinions, speculations or         done about it)?
     the employee as to                                conclusions.                                     • Does the employee believe that he or she
 • confidentiality, cooperation, the prompt          • Ask who, what, when, where, how and                  can work with or around the alleged
     reporting of any developments                     why type questions.                                 offender? If so, is there anything the
 • or further problems.                             • Avoid offering opinions or conclusions               employer can do to assist in order to
 • A review of the employer's prohibition of           yourself.                                           restore or maintain a positive working
     retaliation.                                   • Don't stop with the pre-planned questions;           relationship? If not, why does the employee
                                                       the employee's responses will typically lead        believe he or she could not work with the
 5. INTERVIEWING                                       to additional questions and issues not on           alleged offender?
    Preparation is Important                           your list.                                       • Does the employee have any suggestions
    Create a draft of your proposed opening         • Ask the follow-up questions: ‘anything               or preferred resolutions?
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                                                                                                                                           PEOPLE


• Does the employee have any additional                where, when, how and why questions, the            • At the conclusion of the interview, thank the
  facts or information that would be helpful in        following additional questions might be helpful,     employee for his or her time and
  an investigation, if one is warranted?               depending on the situation:                          cooperation, emphasize that no conclusions
• Before concluding the interview, you                 • What positions has the alleged offender            will be drawn until the investigation is
  should:                                                  held? When?                                      complete, and cover your expectations as
• Thank the person for raising the complaint.          • Name the employees whom the alleged                to non-retaliation, reporting of additional
• Summarize the non-retaliation policy, and                offender has supervised or worked with?          problems and confidentiality.
  instruct the complainant to report any               • Did anyone witness the incidents in
  further incidents or any perceived retaliation           question?                                          Questions For Witnesses
  to you immediately. Make sure the                    • How did the complaining employee                     The involvement of third-party witnesses
  employee knows how to contact you.                       respond to the alleged conduct?                should typically be limited to only those
• Request a written summary of the                     • Did the complaining employee                     individuals identified by the complainant or the
  complaint, if that is how you have decided               communicate that the alleged conduct was       accused, or otherwise known or believed to
  to memorialize the employee's complaint.                 unwelcome? Did the complaining employee        have knowledge of relevant events. Avoid
  Consider, however, promptly providing the                engage in conduct of a similar nature          fishing expeditions. Inform each witness of the
  employee your own comprehensive                          toward the alleged offender?                   general nature of the issues you are
  summary of the information provided,                 • How does the alleged offender view the           investigating, but emphasize that no
  together with written confirmation of your                conduct of the complaining employee?           conclusions will be drawn until the investigation
  instructions.                                        • Has the alleged offender used profanity (or,     is complete. Instruct the witness regarding your
• Ask the employee to come to you if they                  as applicable, racial or ethnic remarks) in    expectations as to non-retaliation, the reporting
  think of any additional information.                     conversations with other employees? What       of retaliation or additional problems, and your
• Tell the employee that you will limit                    was said? To whom? When?                       expectations regarding confidentiality. The
  disclosure of information to those people            • Has any manager or other employee ever           focus of the witness interview should be to
  having a need-to-know. Instruct the                      requested that the alleged offender refrain    determine whether he or she has observed the
  employee that he or she should also                      from using such language? Who? When?           incidents in question, but do not limit your
  maintain confidentiality, and that the                • Has the alleged offender gone out with the       inquiry to only those incidents described by the
  employee should consult you before                       employee socially, or asked employees to       complaining employee or the alleged offender.
  discussing the complaint with anyone else.               go out with him or her socially? Who?              Explore whether the witness has been
• Provide the employee an estimate of how                  When? What happened?                           subjected to similar conduct, and if so, follow
  long you expect the investigation to take,           • How did the complainant react to the             up on the allegations. Witness interviews
  and indicate that no decisions will be made              conduct of the accused?                        should be focused on getting the facts: who,
  until the investigation is complete.                 • Has the employee commented on the                what, where, when, and why. Do not fail,
• Tell the employee that you may need to                   physical attributes of the complaining         however, to find out how the witness has been
  meet again to follow-up, and that you will               employee or others? What was said and          affected by observation of the incidents, and
  meet with him or her again once the                      when? Who was present?                         what he or she has done about it.
  investigation is complete to summarize the           • Has the alleged offender ever asked the              At the conclusion of the witness interview,
  action taken.                                            complaining employee or others about his       as with the complainant, thank the witness for
• Thank the employee again for raising the                 or her sexual relationships, or discussed      their time and cooperation, and cover your
  complaint, and express your commitment                   sexual relationships with other employees?     expectations as to confidentiality, non-
  to resolving the matter promptly.                    • Has the alleged offender ever touched an         retaliation and reporting of any problems
                                                           employee in such a way that the employee       promptly. Document the witness interview,
    Questions For the Accused                              found it offensive or inappropriate?           covering both the employee statement and
    Generally, you should inform the accused           • Has the alleged offender ever implied or         your commitments and instructions.
individual's immediate supervisor of the                   threatened a subordinate’s job if he or she
complaint and your intention to interview the              was not receptive to his or her advances?      7. ANALYSIS AND CONCLUSIONS
individual, requesting that the supervisor be          • Have any of the alleged offender's                   Quality Control
vigilant for further problems, retaliation, or other       supervisors ever spoken to him or her              Once you have concluded the investigation,
reactions which may affect the situation. The              about the issues?                              review your investigation plan and all
alleged offender will often be nervous or              • Does the alleged offender have any               information gathered for completeness and
apprehensive. At the outset, the investigator              documents concerning the complaining           proper documentation. If possible, get a
should explain his or her own impartiality, that           employee or the incidents which are the        second opinion from someone you trust who is
the intent is to conduct a thorough and fair               subject of the complaint?                      not involved in the investigation regarding the
investigation, and to allow the alleged offender       • Does the alleged offender have any               scope and completeness of the investigation,
a full opportunity to present his or her side.             witnesses he or she wants you to interview     as well as any conclusions to be reached from
Need-to-know confidentiality should be                      as part of the investigation?                  the information gathered.
explained, and the alleged offender should be          • If the alleged offender claims the allegations
informed that, regardless of the merits of the             are false, ask of any reasons why the              Assess Credibility
complaint, the employer will not tolerate                  complainant would make up or embellish             It is important that you reach conclusions,
retaliation against the complainant or any                 the allegations.                               even when doing so is difficult, and this will
witness.                                               • Has any spoken to the alleged offender           often require credibility assessments.
    Explain that no conclusions will be drawn              about this investigation?                          Factors to be considered in assessing
until the investigation is completed, and review       • Who? When? What was said?                        credibility might include the following:
the details of the incidents. Afford the accused       • Does the accused have any other                  • What was the ‘body language’ of the
an opportunity to explain the facts and identify           information or documents that might be             interviewee? Obvious nervousness?
any witnesses. In addition to the who, what,               helpful in the investigation?                      Sweating? Tone of voice?

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                                                                                                                      SECURITY INSIDER FEB/MAR 2010// 39
   PEOPLE


 • How did the interviewee react to the              in more significant and serious cases. Such a         investigative report summarizing the incident or
   allegations? Argumentative? Defensive?            memo needs to be tailored to the facts of a          issues under investigation, the application of
   Hostile?                                          particular situation, but should generally be        company guidelines or policies, key factual
 • Does the person inspire confidence in the          brief, and need not discuss specific findings.         and credibility findings, and the action taken.
   listener? Is his or her overall impression        Rather, the complaining employee should be           The following information should typically be
   credible?                                         informed that the investigation has been             included:
 • Logic / consistency of story. Did the person's    completed, that each issue has been reviewed         • The date of the complaint or incident
   chronology of any events he or she related        and considered carefully, and that appropriate           leading to the investigation.
   differ greatly from the chronology of other       action is being taken. Depending on the              • The identity, position and department of the
   interviewees?                                     circumstances, it may or may not be                      employee initiating the complaint, or the
 • Does this person's version make sense?            appropriate to inform the employee of the                information that prompted the investigation.
   Plausible or far-fetched?                         specific actions taken. Such a memo should            • The identity, title and department of the
 • Was the person forthcoming, or did you have       encourage the employee to supply                         target of the investigation.
   to ‘pull information’ from him or her?            management with any documentation or                 • The names and titles of those who
 • Corroborating evidence. Were there any            additional information that he or she might              conducted the investigation.
   admissions during the interview? For              obtain in the future that could impact the           • A summary of the complaint raised or
   example, ‘The only reason why I did it was to     decision made in the investigation.                      information received leading to the
   help her.’                                                                                                 complaint.
 • Did the person's version of the facts differ          Consider Policy, Practice and                    • When the investigation began, and when it
   from anyone else's?                               Circumstances                                            was completed.
 • Do witnesses corroborate the person's                 Once conclusions are drawn regarding             • Confirmation that both the complainant and
   version?                                          what happened, the employer must formulate               the accused agreed that the person(s)
 • Circumstantial evidence. Are there things         a course of action. Factors to be considered             conducting the investigation could, in their
   that the accused said or did in other             will typically include the following:                    opinion, do so fairly and objectively.
   situations that make it more likely than not      • Were any policies or instructions breeched?        • The identities of all persons interviewed, the
   that the facts in dispute actually happened?      • What has been done in the past in                      dates of each interview, and a brief
                                                         response to similar breeches or incidents?           summary of the information obtained from
     Reach a Conclusion                              • Does any law require you to take a certain             each person.
     Very few issues are black and white, and            action?                                          • Final decisions made and dates of
 often you will be dealing with various shades of    • What is the service and history of the                 implementation.
 gray. It is nevertheless important to reach a           employee who breached policy?                    • A copy of any employer policies or
 conclusion. Examine the objective facts,            • Are there mitigating or aggravating                    guidelines relevant to the situation.
 consider motivations, and determine what                circumstances?                                   • Summary of key facts relied upon in
 standards of proof should apply to your                                                                      reaching the final decision, with reference to
 investigation?                                         8. TAKE ACTION                                        the source of each key fact.
                                                        Even in those situations in which firm             • Brief discussion of any credibility
     Report Back to Stakeholders                     conclusions cannot be drawn, there are                   assessments reached, including the
     At the conclusion of the investigation, it is   typically valuable lessons to be learned and             objective observations from which such
 generally appropriate to follow up with both the    preventative actions which can be taken. The             credibility assessments were made.
 complainant and the accused. Perceptions are        range of responses to consider might include         • A brief discussion of how the employer's
 important, and no matter how appropriately          the following:                                           guidelines or policies apply to the situation.
 you respond or what preventative action you         • Warnings to carefully avoid offending              • The specific conclusion(s) reached on each
 take, the complainant may feel that nothing            conduct in the future, even if no firm                 key issue.
 has been done if the general result of the             conclusions can be reached as to what             • Identification of any issues that could not be
 investigation is not promptly communicated. It         happened.                                             resolved in the investigation, and why.
 is typically not appropriate, in most instances,    • Training or educational programs,                  • What action is to be taken, and when.
 to inform employees other than the                     individually, as a group, or company-wide         • Remember that each and every document
 complainant and accused of the results of an        • Verbal counselling or warnings                         gathered or prepared during the
 investigation. Those witnesses who were             • A corrective action plan or probationary               investigation may someday become an
 interviewed may ask about the final results,            period                                                exhibit before an industrial tribunal. Keep it
 and it is generally best to explain that the        • Demotion                                               brief, factual and objective to the maximum
 information is confidential, that their assistance   • Transfer of the offending employee                     extent possible.
 was appreciated, but that the conclusions           • Termination                                             The goal should be that an Industrial
 drawn and actions taken are confidential.            • Follow-up on additional complaints raised          Tribunal or Anti Discrimination Board or similar
                                                        during the investigation                          body would conclude that the employer took
   Document Your Follow-up with the                                                                       the situation seriously, responded
 Complainant                                            Investigation Reports and Files                   appropriately, and had a documented good
   Consider a written communication to the              Depending upon the seriousness of the             faith basis for any actions taken during or on
 employee who raised the complaint, specially        issues involved, consider preparation of a final      the basis of the investigation.
                                                                                                                              ’s
                                                                                                       ªChris Delaney is ASIAL Industrial Relations Advisor.


     Note: The information provided above is for convenient reference only. ASIAL and Chris Delaney & Associates Pty Ltd provide this
     information on the basis that it is not to be relied upon in any or all cases, as the circumstances in each matter are specific.
     Accordingly, we provide this information for general reference only, but we advise you to take no action without prior reference to
     an Employee Relations professional. ASIAL members can contact Chris Delaney by emailing ir@asial.com.au



40 //SECURITY INSIDER FEB/MAR 2010

								
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