Workplace Investigations – The Employee and the Employer

The workplace is becoming an increasingly challenging environment for both staff and management alike, with grievances and the reporting of allegations of inappropriate behaviour on the rise. Coupled with the rise in regulatory requirements, there are expectations for greater levels of responsiveness, accountability and transparency. Increasingly, organisations are recognising the need to respond to these situations in a timely and appropriate manner.

However, a very important element in the employment relationship, is the trust an employee has in the employer that he or she will not be treated unfairly, and on the part of the employer, that the employee with not act unfairly in a manner detrimental to the employer.

Why Would I Need to Conduct a Workplace Investigation?

Often these issues can pose significant risks to an organisation. It is important, that unless workplace issues are dealt with quickly and effectively, the effect upon the organisation can be costly in terms of loss of valuable personnel, time, money and productivity, and may adversely affect an organisation’s good reputation.

Who Should Conduct the Investigation?

A common response in the past was to have the complaint or issue investigated by a Supervisor, Manager or a HR consultant, using an informal approach to resolve the situation. The experience of many is that once inquiries are commenced, and the lid is lifted from the proverbial ‘can of worms’, matters become much more complex than the initial information may have indicated.

Do They Have the Right Skills and Experience?

The organisation needs to satisfy itself that the person asked to carry out the task, has the necessary skills and knowledge to be able to conduct the investigation, in accordance with the principles of Natural Justice and Procedural Fairness.

It is essential that issues such as potential conflicts of interest are identified. A perception of bias on the part of the Investigator held by the complainant, respondent, witness or observer can undermine and taint the entire investigation and any outcomes.

Although not every workplace inquiry needs to be conducted as a full and formal investigation, where a full investigation is required, then it is paramount that the person conducting the investigation is seen to all those involved and observers as being unbiased and skilled to undertake the task. The perception that an investigation is being conducted fairly is just as important as the reality that it is being done so.

What are the Benefits of Appointing an External, Independent Investigator?

The investigation may identify systemic problems within the workplace which could lead to criticism of the organisation. In many instances, an internal Investigator may find it difficult to raise issues that they feel may not be popular with their Managers or Directors.

Adverse findings may result in ill feelings against the Investigator, which may cause further difficulties if the Investigator is required to work with those involved in the investigation during the normal course of business.

It will often be the case, that in serious matters resulting in an investigation, there are distinct advantages in an independent external Investigator being appointed. An independent Investigator will only be influenced by the evidence, they are removed from the organisational culture and politics, and the findings will be based on facts, enabling the organisation to make appropriate decisions.

Do You Have Policy Governing the Conduct of Investigations?

As an employer, you can prevent unnecessary disputes and stress in the workplace, by ensuring that your organisation has clear and transparent policies, and procedures in place governing the conduct of an investigation. The policies should apply equally to investigations conducted by another employee, or an independent Investigator.

Case Law – The Importance of Conducting a Proper Workplace Investigation

The case of Nikolich v Goldman Sachs JB Were Services Pty Ltd [2006] FCA 784, relates to company policies, and also highlights important lessons in investigating workplace grievances, and in particular, the requirement to resolve factual disputes, make clear findings and the importance of a formal framework.

The Facts:

Mr Nikolich worked as a client financial adviser for Goldman Sachs JB Were. In Canberra, advisers service a portfolio of clients, the success of which impacts on their remuneration. Mr Nikolich formed a team of advisers to improve the level of customer service.

When one of the team members left, Mr Nikolich understood that the departing employee’s clients would continue to be serviced by the remaining team members. However, Mr Nikolich’s manager, Mr Sutherland, reallocated the clients largely outside the team. Mr Nikolich lodged a formal complaint about the reallocation and alleged victimisation and intimidation by Mr Sutherland following the reallocation.

The grievance was handled by an HR manager based in Sydney. She immediately contacted Mr Nikolich and arranged a telephone conference. Mr Nikolich was unsure what outcomes he sought, although he wanted something done and did not want his position jeopardised.

The HR manager checked the reallocation with senior management, who said it was appropriate for the branch manager to allocate clients. However, Mr Sutherland handled the reallocation poorly and morale was suffering as a result. Around August 2003, the HR manager sought a response from Mr Sutherland, who denied most allegations. Mr Nikolich subsequently raised a new complaint about Mr Sutherland allegedly transferring one of Mr Nikolich’s clients to himself.

In December 2003, the HR manager provided written outcomes of the investigation. She acknowledged a lack of transparency. However, she determined that: management’s decision to reallocate the clients was “appropriate”; there was no attempt by Mr Sutherland to intimidate or cause stress to Mr Nikolich; and Mr Sutherland had stepped down from his management role.

The Result

Mr Nikolich suffered a depressive condition, which led to the termination of his employment. He brought a claim for breach of contract in the Federal Court.

The Federal Court found that the handling of Mr Nikolich’s complaint was “extremely inept” because there was no recognition of the seriousness of the complaint (an alleged abuse of power), the HR manager should have travelled to Canberra to conduct interviews (if necessary, a venue should have been hired for interviews to ensure confidentiality) and no effort was made to resolve the factual conflict between Mr Nikolich and Mr Sutherland. In particular, key witnesses were not interviewed.

The Cost

The process was found to be in breach of the company’s grievance handling procedure and the employee was awarded $515,869 in damages. The employer is currently appealing the decision.

If you are concerned about any aspect your workplace investigations, please contact one of INVision’s Directors via our website at

Managing Workplace Conflict

When people work together in groups, there are bound to be occasions when individuals have different points of view. This can lead to disagreements which may develop into conflicts in the workplace. Whether these disagreements become full-blown feuds or instead, fuel creative problem solving, is in a large part, up to the person in charge.

Organisation leaders are responsible for creating a work environment that enables people to develop and thrive. You can do a lot to ensure that your employees deal with disagreements in proactive, productive ways, by knowing when and how to intervene — and when to let things be.

If workplace conflicts escalate – you must intervene immediately. In a climate where employees are becoming more and more litigious, doing nothing is not an option.

This blog will identify strategies for you to manage workplace conflict, before it gets out of control.

Identify the signs and causes of conflict

What are the signs of conflict?

Pay attention. The sooner you see the signs, the sooner you can intervene, resolve the conflict, identify the underlying causes, and reach a sustainable agreement.

Obviously, some signs of conflict will be more visible than others. For example, you might; witness a heated exchange between colleagues. Conversely you may note some of the following more subtle symptoms; motivation drops and productivity falls, where fewer people volunteer to take on new tasks, and there is little employee input at team meetings or briefings; behaviour changes, where people may start to make derogatory remarks towards each other, and there are fewer social events organised; the level internal and external complaints increase; and absenteeism increases.

Although some managers will find it easier than others to pick up signs of conflict, you are more likely to be able to interpret the behaviour of your employees, if you have regular channels for open communication and consultation. By listening to the views of your employees at an early stage – before issues become potential problems – you can gauge future reaction to proposed changes.

Identify who and/or what is causing conflict?

Ascertain whether the conflict is between; individuals, teams or groups; managers, or between large groups of employees and management. Conflict can stem from a wide range of causes. Some of these may relate to:

  • health and safety issues;feelings of unfair or discriminatory treatment;
    perceived workplace bullying and harassment;
  • poor communication;
  • lack of equitable employment al opportunities;
  • skill deficiencies and inadequate training opportunities;
  • perception of poor management decisions; and
  • discontent over rates of pay and conditions.

However, sometimes, the real causes of conflict can be an underlying or long standing issue, and may relate to;

  • A long standing rivalry or a clash of personalities between employees;
  • A disagreement or differences of opinion over a work related matter (eg) a project or work assignment
  • Resentment towards an individual or the organisation;
  • A ‘spill over’ from personal issues outside work; and
  • Unresolved problems from the past.

Important! Conflict between work colleagues can often lead to accusations of bullying or harassment. Good managers should always be ready to talk. Try to create a climate of open and positive dialogue. If an employee feels able to approach you at an early stage, then problems can often be nipped in the bud before they become formal grievances.

Managing conflict between individuals

Have an informal discussion with the parties involved.
This stage simply involves discussing, talking, and listening to employees. Giving people the time and space to express their feelings and concerns, can often help to clear the air. It is important employees know who they can go to if they have a problem at work, and that their concerns are taken seriously.
However, it is also recommended you keep a record of when these meetings take place, who attended, what the result was etc. These records may be helpful later on, if the matter escalates to a formal grievance or potential workplace investigation. This will at least indicate what initial steps were taken in order to resolve the matter.

During these discussions, managers should encourage individuals to express their opinions and views, clearly identify the problem, identify their needs, and any potential resolution to the problem. You should attempt to:

Allow every person involved to clarify his or her perspectives and opinions about the problem. Make sure everyone has an opportunity to express an opinion. It is your responsibility to make sure all participants feel safe and supported.

Identify the ideal end result, from each party’s point of view. It might surprise everyone to discover that their visions are not so far apart after all.

Identify what can realistically be done to achieve each individual’s goals. If action is taken, how will this affect other projects and objectives? Will the end result be worth the time and energy spent? If the attempt fails, what’s the worst that can happen?

Find an area of compromise. Is there some part of the issue on which everyone agrees? If not, try to identify long-term goals that mean something to everyone, and start from there.

Having these conversations with employees is not easy, and requires a great deal of sensitivity and empathy. You need to:

  • listen to what employees say, and
  • try and pick up on any underlying causes of unhappiness or stress.
  • question employees in a measured and calm way, putting them at ease, and giving them the chance to speak freely.
  • reframe what’s been said, so that problems can be seen in a different light
  • lead by example, and set the right tone for the way people communicate with each other.

Feel a little out of your depth? That’s okay, but consider getting the help of a professional trained consultant, and engage in training to assist you in building your own skills. There is a wide range of highly trained consultants that specialise in mediation, conciliation, and/or other dispute-resolution processes.

Managers who successfully manage conflicts in their organisations, will generally experience lower rates of complaints than managers who fail to do so. Informal resolution of complaints, significantly reduces the potential for further conflict, time lost in dealing with issues and further administrative processing and related costs.

Important! While employees should be encouraged to try and attempt to resolve matters informally, employees should also be reminded, that it is the responsibility of all staff to behave in a responsible and professional manner in the work place at all times, and treat others with respect and dignity.

Prevention Strategies

  • Bring issues out in the open before they become problems.
  • Be aware of triggers, and respond to them when you first notice them.
  • Have a process for resolving conflicts — bring up the subject at a meeting, and get agreement on what people should do in cases of differing viewpoints.
  • Make sure everyone understands the organisation’s goals and expectations, including what’s expected of each individual. Be as clear as you can about job descriptions, and areas of responsibility.
  • Provide appropriate training opportunities for all employees. Provide training and coaching in conflict-resolution skills, and expect people to use them.
  • Recognise and praise accomplishment. If employees feel valued and appreciated for the work they do, they are less likely to jockey for position and become involved in disruptive behaviours.
  • Discourage gossip, and don’t put people in the position of spying or reporting on each other.
  • Create consistent performance review procedures that apply to everyone equally.
  • Make sure expectations are realistic and consistent with job descriptions.

If you have any questions regarding your conflict resolution in your workplace, please contact one of INVision’s Directors via our website at