3 questions to answer before starting a workplace investigation

So you’ve been given the task of investigating a workplace misconduct allegation. Where do you start?

Some recent decisions from the Fair Work Commission have highlighted the need to ask yourself at least 3 questions before you start planning the investigation.

Exactly what is being alleged?

This is an obvious starting point for any workplace investigation, but it can easily be overlooked.

It is important to be as specific as you can be about what the allegation is (or allegations are) before getting underway. In other words, an allegation that X “behaved badly last week” is not a very useful starting point for an investigation. An allegation that X “threatened to punch Y during a team meeting on 1 July” is a much better place to start.

Sometimes it is hard to be specific about the allegation to be investigated at the very start of the process. You may well obtain further details of the allegation – or information that leads to new allegations – once you start collecting evidence. But it is useful to be as specific as you can be at the very outset.  

There are several reasons why –

• Most significantly, it helps you conduct the investigation fairly. The person responding to the allegation deserves to know specifically what is alleged against them - not just that they have been alleged to have engaged in some misconduct in a general sense.
• It helps you clarify for yourself what information or evidence you need to obtain to fairly determine if the allegation is true. The more specific the allegation being investigated, the more usefully you can plan your investigation.
• It may save you a lot of time because it will help you answer the next two questions below.

If you fail to start the investigation process with a properly clarified allegation, then it is much more likely that your investigation will take longer than it needs to, result in irrelevant evidence being obtained and relevant evidence being overlooked and lead to an conclusion that is unreliable.

An example of the issues created by allegation that are not as specific as they could have been arose in the recent decision of Wilkins v Green Gables Express.

In that case, Mr Wilkins was dismissed as a driver for Green Gables for several reasons, including that (according to the termination letter) –

“on several occasions the vehicle you were in control of on your run (BV05LH) was recorded speeding over the legal speed limit through the navigational monitoring system installed in the vehicle.”

In other words, the allegation against Mr Wilkins was put generally (ie “several occasions” of “speeding”). With the benefit of hindsight, it may well have been preferable for the allegations to have been clarified at the outset of the investigation. Precisely how many incidents of speeding were alleged? Precisely when and where did each alleged incident? Precisely how far over the speed limit did the vehicle allegedly go? And for precisely how long?

In that case, the Commission held that Mr Wilkins had been unfairly dismissed. The decision turned on several factors including some unreliability in the GPS data and a lack of procedural fairness in the way that the workplace investigation had been conducted.

If the allegations against Mr Wilkins had been framed more specifically at the outset, then that may have helped Green Gables make sure that they conducted the investigation fairly, that they obtained the right evidence to substantiate or not substantiate each allegation and that they reached a fair decision about what (if any) consequences there should have been for Mr Wilkins.

So what - why does what is being alleged matter?

Once you are clear on what the precise allegation of misconduct, it is then useful to ask yourself, so what? That is, even if the alleged misconduct occurred, is that of any consequence?

Sometimes an allegation may be made against an employee that, in truth, goes nowhere – especially you obtain more details of the allegation.

The classic example of this is the allegation of bullying that – when clarified – is really an allegation of a reasonable performance management process. A much more interesting recent example of the same point arose in Matthews v San Remo Fisherman’s Co Operative. In that case, the Commission determined that Mr Matthews had been unfairly dismissal from his job as a pelican feeder (yes, you read that correctly).

The dismissal arose from several matters, including Mr Matthews’ -

1. Refusal to stop selling badges for a local pelican support group he was a member of after he finished his pelican feeding shifts.

2. Swearing in frustration at a meeting with the Co-Op’s General Manager.

The Commission decided that the Co-Op had no right to regulate Mr Matthews’ lawful conduct, which he undertook outside hours, to raise money for a genuine pelican support group. Similarly, the Commission decided that swearing in frustration (as opposed to in a threatening or aggressive way) at a meeting was not a significant matter.

In other words, the Commission really assessed that, even though Mr Matthews was “guilty” of the alleged misconduct, so what? The alleged misconduct was really no misconduct at all. The selling of badges was the perfectly legitimate conduct of an employee in his private time and it was not inconsistent with the obligations of his role or the interests of his employer. And an isolated incident of swearing in the workplace – while not be encouraged – is not something terribly unusual.

Is the allegation really an allegation of misconduct or poor performance?

The final of the three questions you should ask before starting an investigation into alleged misconduct is whether the allegation really does relate to misconduct or whether it is really an issue that goes to poor performance by the employee.

If the issue is one of performance, there may not need to be any investigation at all (or it may be a very different, and simpler, investigation). Plus, what flows from the investigation may well be very different. That is, even if the allegation is substantiated, the issue should be addressed through a performance management process rather than any other consequence.

This issue arose in the Commission’s recent decision in Zirilli v Start Track Express.

In that case, Mr Zirilli was dismissed following his failure to properly sign off driver run sheets. Star Track took the view that this was a matter of misconduct on the basis that it went to a question of health and safety.

In finding that Mr Zirilli had been unfairly dismissed, the Commission observed -
 
"the applicant’s dismissal was incorrectly treated as a matter of misconduct rather than poor performance. The failures in question were not wilful or deliberate. I am satisfied that they were in the nature of mistakes and were presumably the result of a lack of due diligence, rather than any decision on the part of the applicant not to perform this part of his role. The applicant was not – but should have been - issued with a warning about his unsatisfactory performance ... The respondent should not have dismissed him without giving him a warning and a chance to improve."

Conclusion

Obviously, there is much more to conducting a fair workplace investigation than just considering these three issues. However, making sure you think carefully about these three points at the very start of the process will help set you up for success and also help you avoid some easy-to-make investigative errors.