In the usual course of workplace investigations, it is often one person’s word against another’s. This is particularly the case when a serious allegation such as sexual misconduct has been made, and there are unlikely to be any witnesses to the event.
When a serious allegation has been made, often the ‘accused’ then makes their own claims against the accuser, resulting in cross and counter-allegations.
THE DIFFICULTY THIS CAUSES FOR INVESTIGATORS
Occasionally, counter allegations are made immediately after the investigation is made known to the respondent, and this can make it more difficult for even the most experienced investigator to determine the true course of events leading up to that point. Counter-allegations also sometimes surface once an investigation is already in progress, making it harder for investigators to discern whether they are legitimate or simply made with the objective of revenge.
The most important thing is that each allegation should be investigated independently.
THE DANGER OF NOT INVESTIGATING COUNTER COMPLAINTS
A recent decision of the Fair Work Commission demonstrates the importance of ensuring that all allegations are thoroughly and independently investigated, regardless of the circumstances in which they are made.
In the decision of Watts v Ramsay Health Care it was determined that an employer’s failure to investigate complaints of bullying was in itself a form of bullying.
In these circumstances, Ms Watts repeatedly advised her employer that she was feeling harassed and bullied by her peers, including her co-workers making accusations of Ms Watts smoking cigarettes past her allocated break, smelling of alcohol and failing to perform her duties adequately.
Ms Watts raised those concerns in the context of a formal investigation by her employers into her own conduct.
However, her employers failed to investigate Ms Watts’ counter complaints on the basis that there was insufficient information and evidence to support Ms Watts’ allegations, against a background where she did not name the offenders.
The Fair Work Commission ultimately determined the failure to investigate the bullying investigations was an inappropriate and unreasonable management decision, and a breach of the employer’s own discrimination, bullying and harassment policy.
WHAT ARE THE KEY LESSONS?
Perhaps the most important aspect of undertaking fair workplace investigations is ensuring that internal policies are followed, in particular focusing on:
- Determining and implementing the threshold requirement for commencing an investigation, for instance requiring a formal written complaint before management action can be taken;
- Being flexible in interpreting the information provided and not imposing arbitrary minimum standards, for instance requiring direct evidence of wrongdoing;
- Taking into account the context surrounding the making of the allegations.
Employers and management should also ensure that they do not make early judgments or allow themselves to be biased in the context in which the allegations are made. In the case of Ms Watts, for example, her employers appear to have judged her allegations on the basis that they were made during the course of her own performance management process.
It can be challenging for investigators when presented with counter-allegations. If you want to ensure that you are undertaking investigations effectively, WISE provides a range of skills-based short courses for investigators, or formal qualifications such as Certificate IV and Diploma in Government Investigations.