How do you balance competing principles during a workplace investigation? And how can you maintain psychosocial safety? An expert walks HR practitioners through the end-to-end process of an effective workplace investigation.
Workplace investigations are one of HR’s most emotionally charged and risky areas of compliance.
HRM has previously reported on the costly ramifications of botched investigations. In a recent example, a business was ordered to pay more than $17,000 in compensation after unfairly dismissing an employee for unsubstantiated misconduct. The Fair Work Commission (FWC) found that the investigator, an HR manager based in a different country, had not carried out the investigation with the “appropriate amount of rigour and due diligence”.
Eden Elliott-Griggs, Training and Development Manager at Wise Workplace Training and facilitator of AHRI’s Writing Advanced Investigation Reports and Allegations short course, says that workplace investigations should be underpinned by best-practice principles of procedural fairness, consistency and confidentiality, and comply with broader organisational duties.
“What’s most important is that we remember we’re here to provide a safe workplace and a sound process for everybody, not just [for] one worker who has raised a particular issue,” says Elliott-Griggs.
An effective procedure which follows established organisational policies can maintain employee trust, minimise reputational damage and contribute to a healthy, respectful workplace culture.
Below, Elliott-Griggs walks through what to do before, during and after a workplace investigation, and addresses common concerns HR practitioners might have. For a topline visual guide, read this recent HRM article on handling misconduct.
Hear more from Eden Elliott-Griggs in AHRI’s short course and ensure your allegation and investigation reporting is robust and compliant.
Before an investigation: Early considerations
The first step in conducting a workplace investigation is determining whether the investigation is actually called for, says Elliott-Griggs.
“You should only investigate when it is mandated, or is proportionate, useful and necessary. Otherwise, the intensity and impacts of the [investigations] process often are not justified by the potential risk in the alleged conduct.”
Who should investigate?
HR practitioners who are trained and experienced in conducting workplace investigations, and who do not have any personal relationship with the parties involved, may be well-positioned to carry out an investigation.
Elliot-Griggs recommends engaging external investigators when organisations do not have the requisite internal capability and capacity, or where conflicts of interest may compromise the impartiality of the process.
During cases where an independent, external investigator is called in, HR practitioners still play an important role in providing wellbeing support alongside the process and can contribute to the “[rehabilitative] work afterwards, without having to go through the damaging process of issuing allegations and carrying out disciplinary action.”
“Almost every investigation I’ve ever seen could have been prevented if somebody had responded to an issue earlier.” – Eden Elliott-Griggs, Training and Development Manager, Wise Workplace Training
During an investigation: Evidence and psychosocial safety
Taking a structured approach to evidence-gathering is crucial to establishing the facts behind the allegation. Before any interviews occur, investigators should be scoping out the ‘particular’, or the specific claims to be investigated.
Elliott-Griggs says this requires gathering evidence against the following elements:
- Date
- Location
- Any context necessary to understand why the behaviour is wrong
- Who has done the wrongdoing
- What the specific wrongdoing is
“The standard we’re looking for is thoroughness. If I have evidence for each element of each particular, which outweighs the evidence against it, then I can be confident that the particular occurred.
“For thoroughness, I must also have made sure to look for evidence against the particular, as well as in favour of it, and that I have not ignored any obvious or easily available sources of evidence.
“If I choose not to pursue a source, it’s because I have an evidence-based reason for doing so, I have weighed the risks of not collecting it, and I reached a conscious, conscientious, documented decision about the need to gather that source.”
In all cases, allegations should be scoped out in detail and supported by evidence before they are provided to a respondent. This ensures a respondent cannot claim they were provided with insufficient information to respond, ensures that allegations are not presented unnecessarily, and helps minimise industrial risks.
The legal requirement is to provide respondents with enough information to understand the allegations, says Elliott-Griggs.
That means they are entitled to a formal statement of what is alleged – it is not an entitlement to access the evidence itself. However, investigators should review this against their individual industrial agreements as some enterprise agreements may demand a higher level of evidence disclosure.
Balancing competing principles during an investigation
A workplace investigation needs to balance competing principles, like the legislated duty to provide a safe workplace, with a respondent’s right to respond.
This complex balancing act was illustrated during an FWC case in 2024 where an employee at a coal mine was found to have been unfairly dismissed. The FWC found that the external investigator had rushed the investigation and failed to provide him with the “full opportunity to respond”, due to the pending transfer of the employee’s employment resulting from the ownership transfer of the mine.
Robust communication, in line with confidentiality obligations, is key to maintaining control over the process, says Elliott-Griggs.
“You should bring your stakeholders along for the journey. The thing that most exacerbates what we call ‘spray and pray’ behaviour [reactive behaviour from respondents] is the unknown.
“Investigators should provide as much information, clarity and consistency of messaging as we can, even if that messaging is ‘we’re still waiting for an update from so-and-so’. We should give parties confidence that the process is well managed, that the rules exist for their protection and that the investigator is in control.”
Conscientious documentation of the investigator’s decision-making is also recommended, as this can provide evidence of a sound and fair process in future disputes.
Maintaining psychosocial safety during an investigation
The scrutiny involved in an investigation means individuals face higher psychosocial risk, particularly in cases involving allegations of harassment, bullying and discrimination.
Adopting a trauma-informed lens helps investigators recognise this impact and ensure the investigation does no harm to the parties involved. This means assuming everyone is at risk and providing an equitable level of support, while respecting an individual’s autonomy, says Elliott-Griggs.
For instance, trauma-informed practice during an investigation might include consulting with the complainant on how they’d like the interview to be conducted.
“[Even] if I think someone is at too great a risk of re-traumatisation to participate in the process… I don’t make that assessment on their behalf,” says Elliott-Griggs. “I need to [ask] them how they can participate and how we can make it safe for them.”
“I don’t rob them of the opportunity [to speak] and I don’t close my process just to avoid risk that may or may not eventuate. However, I can also agree with them to adopt evidence they have already provided, rather than repeating harmful questions they have already answered.”
Maintaining psychosocial safety while meeting your various legal obligations as an employer also applies to adjustments during the investigation process.
“We don’t reduce the standard of behaviour or practice required of an employee because they might have some wellbeing or other challenges,” says Elliott-Griggs.
“We might accommodate the way things are done, and provide supports to help a person meet the standards, but the rules have to stay the same for everyone to ensure a well-governed workplace.
“The investigation process needs to interconnect with flexible work arrangements, keeping in touch procedures, and reasonable accommodation processes, making use of medical evidence and formal requirements, to ensure that the investigation remains under control.”
Read HRM’s article on how to navigate misconduct investigations involving mental health challenges.
After an investigation: Mitigating future risks
An investigation doesn’t end after the evidence has been evaluated, the findings have been handed down to the appropriate parties and a final decision has been reached. In most cases, an act of misconduct is a warning sign for underlying systemic or cultural issues.
“Nobody is naturally a bully in the workplace; it comes from somewhere,” says Elliott-Griggs. “You want to look at the system that allowed this to occur and the different factors that have contributed, and then identify your risk sources and treat them.”
She cites the fishbone diagram as one of many useful tools for diagnosing potential causes of workplace misconduct (see below).
“The environment [element] is where I can bring a lens to culture and ask, ‘Who walked by this behaviour? What’s the remaining level of trust in the team that’s been exposed to the investigation? What gossiping, collusion or power games did we see – and how can we repair those issues?”
Paying attention to the people and management elements, such as managerial capabilities in workplace conflict resolution skills, is also vital to preventing future risk, says Elliott-Griggs, as “almost every investigation I’ve ever seen could have been prevented if somebody had responded to an issue earlier, when indicators of trouble were first identified.”
Prioritising the aftercare and prevention process is ultimately an opportunity for HR practitioners to restore trust and lay the groundwork for a safer, more respectful work environment.
Learn critical skills such as how to analyse evidence and how to respond to common external investigation challenges with this short course from AHRI.
