Workplace investigations can be a costly and time-consuming task that seriously impacts the people involved in them. In a best-case scenario, workplace hostilities are calmed via mediation, and in the worst-case multiple people can end up resigning or losing their job.
But what happens if the investigation is conducted improperly?
Skilled and experienced investigators are able to conduct workplace investigations with confidence, without having to worry about running into problems regarding bias or breaking the rules of procedural fairness. Unskilled and inexperienced personnel acting as assigned investigators (such as HR managers or members of the legal department), on the other hand, often do not have the knowledge or ability to fairly conduct investigations, which in turn can have serious consequences on other employees and the company as a whole.
Using in-house personnel to conduct internal investigations is not problematic in-and-of-itself. Problems are created however, when these assigned investigators have a personal stake in the result of the investigation or are unskilled and inexperienced in the techniques of investigating. As a product of this, they can make serious mistakes that affect the careers and livelihoods of others, and potentially cost the company several times more money than if they had just hired an experienced investigator in the first place. This is especially evident in the 2014 FWC case, Keiko Adachi v Qantas Airways Limited.
This case was brought to the FWC after an investigation resulted in the dismissal of a stewardess after an altercation between her and her line manager. Prior to the investigation, Ms Adachi (the stewardess) had made several bullying complaints against her manager and had taken time off due to stress related sickness. Upon returning to work she was issued with a medical certificate stating that she was able to perform ‘suitable duties’ but was told that she was not allowed to fly that night due to the QANTAS ‘return to work’ policy. The manager (Mr El Khoury) had possession of the medical certificate at this time, and reportedly refused to return it to Ms Adachi. This resulted in the altercation that triggered the investigation. Ms Adachi reported the incident to the police, and Mr El Khoury submitted a complaint to his supervisor.
Instead of hiring an external investigator, or even using its own legal team, QANTAS simply appointed a more senior manager to perform the investigation. Ms Adachi was stood down for the duration of the investigation, which found that she had breached the QANTAS code of conduct and resulted in her dismissal. Ms Adachi, clearly unhappy with this decision, took the case to the FWC, who found that, not only was the investigation itself flawed, but her dismissal on the grounds of gross misconduct was “harsh, unjust, and unreasonable”.
Why was the investigation flawed?
Straight from the word ‘go’ the investigation failed to follow some of the basic rules of procedural fairness.
Because the assigned investigator was a member of the senior management team, he had a close working relationship with the complainant, Mr El Khoury. This meant that the investigator was biased from the very beginning. This becomes increasingly clear when you examine the way in which the investigator came to his conclusion.
The first witness reported in an email that they saw the altercation between the two parties, but after a time changed their statement, saying that what they claimed was different to what they actually saw.
The investigator then interviewed and collected evidence from 12 other witnesses in order to find an accurate timeline of the events that took place. Reportedly none of the 12 witnesses that were interviewed provided any evidence in favour of Mr El Khoury’s version of events, and instead provided evidence that supported Ms Adachi. Despite this, the investigator disregarded this evidence and showed support and an obvious bias for Mr El Khoury.
The investigator made a decision in favour of Mr El Khoury despite the lack of evidence and resulted in the dismissal of Ms Adachi. The case was then expanded upon and evaluated by the FWC and resulted in serious consequences for QANTAS (reinstatement of Ms Adachi and financial costs of going to court, as well as the negative impact on the reputation of the company).
Another example of the consequences of a flawed investigation can be seen in the 2016 case, Mary-Jane Anders v The Hutchins School.
In short, a school in Hobart dismissed a teacher, Ms Mary-Jane Anders, who was working in multiple roles, after she began to struggle with her mental health and her workplace relationships as a result of her workload. Because of these breakdowns, there were complaints and allegations made against her which resulted in an investigation and her dismissal. The main issue with this investigation is that the assigned investigator Deputy Headmaster Alan Jones, not only worked closely with faculty members that Ms Anders had previously complained about, but was himself a subject of one of these complaints. This meant that he, in essence, was investigating a complaint against himself. This combined with his knowledge of Ms Anders’ mental health concerns ruled out any impartiality he once had and “did not provide a reasonable basis for any of the allegations to be proven”, according to the FWC. The school was then ordered to pay a hefty compensation to Ms Anders.
It should be clear, even to untrained and inexperienced investigators that in both of these examples there are serious issues with the method in which the investigations were carried out. There is clear investigator bias in both cases, as well as inexperience/lack of skill which impacted the investigation and result.
While these problems are easy to spot from the outside, in the moment they can be difficult to detect. So, how can you avoid these mistakes, and avoid having to face the serious consequences that come from flawed investigations?
- Hire an external investigator. Looking outside of your company to investigate your workplace issue not only means that the problem of investigator bias is lessened, as the investigator won’t know anyone in the company, or have any preconceived ideas or opinions, but also has the added benefit of having someone skilled and experienced making difficult the difficult decisions. They will make decisions and determinations that you can be confident in on this basis that they are backed by solid evidence. This can also be lifesaving if the case goes to the FWC. Hiring an external investigator may be more expensive in the moment, but it could save huge amounts of money in the long run in legal expenses, court expenses, and potential fines or compensation as the result of an FWC finding.
- Skill and experience are key. If you are using an internal staff member to conduct your workplace investigation, make sure they have the knowledge and experience to do it correctly. Companies often fall into the trap of using someone from their HR or legal department to perform their investigations because they have solid knowledge of employee rights and legal principles. Unfortunately, they can still succumb to investigator bias, or fail to filter and highlight important and unimportant evidence which can severely impact the process and result of the investigation. These assigned investigators may also not be able to properly interview people in an investigative way, or not know who is essential to interview and who is not needed, which can bloat and draw out the investigation.
Hiring an external investigator instead of assigning the investigation to an internal member of staff not only ensures you’re getting someone who will follow all the rules required of investigators, but who also will conduct the investigation in a manner which will save your money and time in the long run, with a decision that you can rely on.
Why not contact Synergy Workplace Investigations to discuss your matter and speak with an expert in the matter.