Received a serious staff complaint? Time to conduct a workplace investigation

It is a reality that complaints of bullying, sexual harassment and allegations of poor health and safety frequently arise among Australia’s 235,000 hospitality venues. At the root of these issues can be poor staff behaviour, a workplace culture problem, or operating standards that are non-compliant.

If your business receives a complaint from a staff member, or if an alleged health and safety incident has occurred, the best response in most cases is to thoroughly investigate the incident. Conducting a workplace investigation allows you to:

• find the truth of the allegations in the complaint, or the facts and circumstances of the incident; and
• make decisions about how to deal with the complaint or incident based on your findings.

Where safety risk or legal liability exists, a well-conducted workplace investigation is critical to reducing your legal exposure, and avoiding litigation expenses, reputational damage as well as distraction away from running your business.

What to consider before investigating

Before commencing an investigation, you should consider these questions:

• Is an investigation needed? If the issue or incident is low risk, the facts are already known, or the potential consequences are minimal, an investigation is unlikely to be warranted.

• Will the investigation be conducted by an internal person or independent third party? The answer will depend on several factors, including:

• What is the investigator being asked to do? Sometimes it is just to find the facts, but other times it is to form a view on whether the allegations are substantiated and if that constitutes a breach of law or company policy. You might want the investigator to opine about why the issue or incident happened and make recommendations about how to prevent it in future.

• Who decides on any disciplinary action for employees? The investigator and decision-maker should not be the same person.

Conducting the investigation

It is best practice for workplace investigations to be conducted quickly, confidentially, sensitively and with procedural fairness to all parties. Workplace investigations should not be biased or favour one person, and should give consideration and appropriate weight to the information gathered. It’s about giving any person under investigation a reasonable opportunity to respond to allegations against them.

Employers conducting workplace investigations should ensure they are comprehensively and fairly run, with all evidence weighed up and considered with recommendations in a final report to management.

Poorly conducted workplace investigations come with a significant risk of compromising the outcome, which increases legal exposure and reduces employees’ trust and confidence in the employer. The consequences are potential legal claims and workplace culture issues. However, with a proper investigation process, hospitality employers can protect their business and ensure misconduct allegations are dealt with effectively.

If you need assistance conducting a workplace investigation, or are seeking an external party to manage an investigation, reach out to Holding Redlich’s workplace team here.

About Ben McKinley

Ben McKinley is a Partner in the Workplace Relations & Safety team at Holding Redlich. Ben acts for a number of the largest and highest profile restaurant and hospitality groups in Australia, and has assisted them to reduce their legal exposure in all employment-related areas, including Fair Work Ombudsman prosecutions and underpayment, discipline and dismissal, and workplace health and safety.

If you want more information about how and when to conduct workplace investigations, please contact Ben at ben.mckinley@holdingredlich.com.

Ben McKinley - November 2022