A poor workplace investigation can leave a path of destruction with a trail of bodies.
Often handled poorly, they can lead to disastrous long-term effects across a whole organisation and mental illness for the people involved. In some instances, as the Federal Court recently held, they can be unlawful.
For the person who is the subject of an investigation it's a very stressful time as they're often ambushed with a range of accusations and receive no warning. Moreover, the person is often suspended while an enquiry takes place.
They often feel judged guilty before proven innocent, with their reputation in tatters before a single finding is made.
I've had a client, a senior executive, who had fought hard as a woman to succeed in a male-dominated industry. However, being suspended with no timeframe and for what appeared to be trivial allegations had destroyed her confidence and wellbeing to the point where she couldn't complete a meeting without tears.
Often other employees are dragged into an investigation and asked to give statements where they are forced to take sides in a bid to protect their own positions. For many this is highly stressful and can lead to raised anxiety levels.
Unfortunately, many of those asked to give statements are brutally treated and are called into meetings and threatened with a range of consequences if they do not provide the right answers. I've had clients forced to give information on multi-year-old complaints that originally went nowhere. The investigation is used as a tool to dredge up as much as the employer can about an individual.
Senior management, or those earning over $140,000 a year, have almost no protection under the law and have no access to unfair dismissal rights. It's a real problem and the law needs to change to better protect the subjects of investigations.
Conversely, sometimes when very senior or high-profile employees are put under the microscope, as we've seen in a number of recent investigations of media figures, employers can focus their time trying to discredit the whistle-blower or victim.
Bearing all this in mind, organisations need to take a close look at how they conduct internal workplace investigations and ensure they're fair and not arduous, drawn-out affairs. There needs to be more whistle-blower protection as well as more structure around how we conduct investigations.
To begin with, proper procedural fairness needs to be adhered to. Organisations have to make sure people are not ambushed with allegations, and remember the investigation is not the same as criminal proceedings.
In an initial meeting where the allegations are laid out to an individual, they need to have a support person with them. Importantly, there should be no decision made on guilt at the first meeting. Suspension from work should be the last resort. Moreover, a plan should be put in place to deal with the outcome, whatever it may end up being, and outlined to all parties before they continue.
Once the formal investigation begins, it should be conducted quickly and effectively. Witnesses called to give statements should be treated fairly and not utilised as part of a larger muckraking exercise or for character assassination.
In my time working on both sides of the fence - acting for whistle-blowers and those being investigated - I have often seen workplace investigations conducted poorly because simple procedural fairness is not followed. There have been instances of victimisation on both sides that reflect poorly on an organisation and its people.
More often than not it's a lack of training on behalf of those conducting the investigation. Sometimes an organisation doesn't have a practical workplace investigation policy in place. I see human resource professionals who are not trained properly nor do they have a strong understanding of workplace laws outside of an organisation's in-house code of conduct.
A trap human resource departments or others conducting an investigation fall into is inherent bias. They are working to reach a quick conclusion in a bid to reach a pre-determined outcome. Unfortunately, while a quick outcome might be designed to minimise disruption in an organisation, it's one that can ignite and exacerbate simmering tensions well into the future.
Even though I have represented many victimised whistleblowers, or people subjected to workplace investigations, I accept they are necessary tools at work. However, if employers are going to do them, they should be done well, rather than face the fallout of a badly conducted process.
Giri Sivaraman is head of Maurice Blackburn's Queensland employment law department based in Brisbane. He has been recognised as a preeminent lawyer for employees in the Doyles Guide.