A fact finding process which seeks evidence and information to decide whether there is a case to answer in relation to any allegations. This could be about potential misconduct, lack of competency, bullying or harassment, work performance, terms and conditions or other such matters.
The investigation is carried out with thoroughness, rigour, consistency and impartiality. It is a respectful process and is not about ‘building a case against an employee’. It is a formal process that respects the principles of natural justice.
The investigator examines the facts to decide whether or not, on the balance of probability, there appears to be a case to answer. If there is, then the organization will deal with this as a separate process (e.g. disciplinary meeting). It is important that the investigator does not make a decision on how the outcome of the investigation is dealt with, as fact-finding and deciding on an outcome must be separated to respect natural justice.
It is important for organisations to treat workplace matters in a careful, fair and transparent manner. It is best practice employee relations to carry out a reasonable yet thorough investigation before taking any decisions which will have an impact on staff. An incomplete, partisan, or poorly structured investigation or report is a weak base on which to decide on an outcome.
On the other hand, a clear and concise report with logical conclusions based on facts, following an investigation which is respectful and fair, is a solid base on which to make robust and correct decisions.
A good investigation means that workplace justice has been done and can be seen to be done.
For some organisations it is essential to commission an external investigator where internal senior staff are unable to investigate due to time, skill or partiality or some other critical reason.
The process is in four stages:
Terms of reference are established which forms the boundaries of the investigation. The written allegation and response are examined, as well as policies and procedures and other initial information. A plan is developed for gaining evidence including interviews.
Evidence is gathered. Interviews are held with parties and witnesses and a record made. A full understanding is developed of what factually happened, while keeping an open mind at all times.
The investigator examines all the evidence and explores timelines, looks for patterns and inconsistencies, compares statements and uses logic to analyse and reach conclusions.
The information is written clearly and in an objective manner. It describes the conduct of the investigation and explains the evidence and how, on the balance of probability, there appears to be a case to answer or not. If there are any mitigating circumstances, this is also highlighted. Once the report is presented, the investigator takes no further part in dealing with the outcome.
An investigation needs to be thorough, but not unreasonably so as the test is ‘balance of probability’ rather than ‘beyond reasonable doubt’.
With a background in Human Resource Management prior to becoming a consultant, Brendan has carried out numerous workplace investigations in Ireland and the U.K. and is in constant demand as both a practitioner and a trainer.
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