How to conduct a workplace bullying investigation – Tips and Traps – Part 1

by 18 Jun 2019Workplace Investigations

The Investigator’s Role

The investigator’s role is simple – to get to the truth of the matter.

It is not to prosecute the complaint and it is not to defend the respondent. Nor is it to be a mere mouthpiece of the employer or produce a result that might best suit the employer’s objectives.

The investigator, whether internal or external, must be independent of the parties in dispute and come to the investigation with and maintain an impartial mind.

The investigation must be conducted in accordance with any relevant organisational policies and procedures and, if relevant, statutory requirements (eg. if the employer is a government body).

How to Collect Evidence

As in litigation, evidence in relation to workplace bullying allegations may take many forms including documents, oral and written testimony and audio or video recordings. However, a workplace investigation is not bound by the judicial rules of evidence and may therefore inform itself in any manner it determines, subject to the investigation’s terms of reference and the rule of relevance. As such, an investigation may consider and give appropriate weight to, for example, hearsay and opinion evidence.

In many (maybe most) cases, allegations of workplace bullying involve unwitnessed events and/or subtle behaviours. Many allegations can also be quite dated, meaning that the memories of the parties and witnesses may have deteriorated with time.

In these cases, the skilled conduct of interviews is crucial because determination of the allegations will ordinarily turn on the respective credibility of the parties and/or witnesses. It is entirely inappropriate and unhelpful to a decision-maker for an investigator to conclude that an allegation is unsubantiated merely because the evidence of an unwitnessed event is of a so-called “he said-she said” nature.

To that end, the evidence of all interviewees (including the complainant) needs to be carefully tested. However, testing the veracity of evidence in a workplace investigation is not the same as under cross-examination in a court as the investigation is not an adversarial process. Nonetheless, general answers to questions should be probed for more specific information – remember to ask “what?”, “where?”, “when?”, “who?”, “how?” and “why?” All answers to questions should be examined for inconsistency, either internal or with other evidence. Any apparent inconsistencies should be put to the interviewee for clarification and explanation.

It is my strong view that all interviews should be audio recorded. First, it saves time because the investigator does not have to write down everything that is said. It is also very difficult to concentrate on the evidence being given and your line of questioning while taking detailed notes. Second, the recorder records things exactly as they are said. This protects both the investigator and interviewee against any later dispute as to what was or was not said during the interview.

A reliable record of each interviewee’s evidence should be produced – either a statement or transcript of the interview.

If a statement is used, it should be signed by the interviewee to avoid later disputes as to whether it was an accurate summary of the person’s evidence.

My strong preference is to use transcripts. First, it avoids endless debates with witnesses as to what evidence they actually gave at interview or dealing with refusals to sign a statement. Second, it provides a record of precisely what was said at interview. The benefit of having such a record is that the credibility and reliability of a person’s evidence is often to be found in precisely (ie. a transcript) what they say rather than the thrust (ie. a statement) of what they say about a given issue.  As stated above, an assessment of relative credibility of the parties to unwitnessed events is often what the determination of workplace bullying allegations turn on.

If there is a chance that the integrity of an investigation could be prejudiced by evidence being destroyed or altered or witnesses being interfered with, consideration should be given to delaying notification of the allegations to the respondent until after all such evidence has been secured and/or to the temporary removal of the respondent from the workplace (eg. by suspension on pay or temporary secondment to alternative duties, etc).

In Part 2 of this series, I will address the issues of how to deal with the complainant, witnesses and respondent.

 

Alison McRae

Alison McRae is a Director with Farren McRae Workplace Lawyers and Consulting. She specialises in complex workplace investigations across the public and private sectors. Thorough, meticulous and insightful, Alison easily teases out the core as well as the underlying sub-issues impacting on the matter. Alison also has extensive experience in policy and compliance, both in the government and independent education sectors.

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