7 Deadly Sins Committed by Employers – Workplace Investigations
Employers commonly make a number of mistakes when dealing with issues of employee complaints, grievances or allegations of misconduct. However, there are ways to reduce the potential of costly lawsuits, industrial action and an unhappy workplace.
Employment lawyers are often asked to advise on workplace issues or disputes after the “horse has bolted”. Unknowingly, employers can have potential time bombs that explode into costly litigation. It’s difficult, if not impossible, to unravel or manage the paper trail of damaging admissions and dealings with employees and unions.
So how can you avoid making similar mistakes? Here are 7 mistakes employers often make and how to avoid them.
1. Failing to discipline employees and document poor performance in the first place:
In unfair dismissal claims, it’s common to find that the employer’s records don’t always demonstrate that there was a valid reason or a fair process for the dismissal. A common response to questions is; “oh, yes, I had a chat to them about that.” The problem with this approach is that, down the track, when the employee keeps on engaging in misconduct or when the employer can no longer tolerate the unsatisfactory performance, the employee’s personal file fails to show properly recorded documentation detailing the problems.
As a result, it is much more difficult for the employer to demonstrate that there were grounds to justify the termination or other disciplinary action. Vague recollections of chats at unspecified dates, are not very persuasive for courts and tribunals.
2. The “shotgun” or “knee-jerk” approach:
One of the biggest mistakes employers make is being reactive and not strategic about actual and potential workplace issues. An aggrieved employee will often take a “shotgun” approach in relation to a complaint or grievance by, for example; lodging a workers’ compensation claim, engaging their union, stating their intention to lodge an unfair dismissal claim or law suit.
These situations can often be overwhelming for employers, but it is important that employers do not have a “knee jerk” response, and jump straight into an investigation or legal action, without first following the appropriate procedures. Seek advice and address potential problems early and quickly.
Plan for this by having a grievance /complaint management procedure in place, so you can deal with issues as they arise.
3. Not having appropriate policies or procedures in place:
Following allegations of discrimination or harassment, policies are often found to be inadequate, employees have had no recent training (or no training at all), and managers and supervisors have let problems get out of hand. Implementing effective policies and procedures for dealing with such issues is vital.
Employers should ensure that their policies and procedures are comprehensive and up-to-date. It’s also essential to regularly train managers and employees on these policies and procedures. For example; an effective Grievance Resolution Procedure, should be a staple in every workplace.
It is recommended that grievances are managed via the following process.
Step 1: Informal Discussion;
Step 2: Raise Informal Grievance;
Step 3: Lodge Formal Grievance;
Step 4: Conciliation and Mediation;
Step 5: Investigation. (However, this should not be initiated until steps 1-4 have been attempted and documented.)
4. Failing to properly investigate employee grievances/complaints:
Managers and supervisors take shortcuts in investigations far too often. Typical mistakes when investigating a formal grievance may include;
- Failing to understand and apply the principles of natural justice and procedural fairness;
- Failing to plan an investigation methodically, or at all;
- Not following a grievance management procedure; and
- Failing to engage a suitably qualified Investigator.
5. Not managing staff effectively during an investigation:
Employers need to be aware of potential stress that may be suffered for those involved in an investigation, and have mechanisms in place to deal with it should it arise. Such as, access to Employee Assistance Programmes, counsellors or grievance officers. Staff morale is crucial and it is important to communicate with staff and be open with them about the investigation, without breaching confidentiality.
It often helps for the manager to give staff a brief explanation of what may be occurring in their work area to avoid the ‘rumour mill’ and avoid the workplace becoming toxic. When an investigation is completed, it is important to conduct a debriefing session, especially if the investigation involves misconduct. Remember, managers and supervisors need to ‘walk the talk’.
6. Not implementing recommendations:
An essential phase of any investigation is the implementation of change stemming from the recommendations in a report. It is a common re-occurrence that many employers fail to implement recommendations. The results of any major report or enquiry, should serve to generate improvements to the workplace and implement strategies to manage future complaints/issues.
7. Viewing an investigation negatively:
Employers should not look at a workplace investigation as an inconvenience or major problem. Treat an investigation as an opportunity to effect change if something is not working or, to strengthen existing processes, policies, procedures and overall functionality of your workplace. After all, a workplace investigation is just another managerial tool.
Avoid the Stress
Workplace investigations can be a stressful undertaking for all those involved. Get it right and systemic and endemic problems may be addressed. Get it wrong and you run the risk of creating a toxic dysfunctional workplace, so let INVision help!
INVision’s licensed Investigators have successfully conducted over 1000 workplace investigations, and offer over 45 years combined experience in working for various state and local government agencies, and private companies throughout Australia.
As such, we have a broad knowledge base, a comprehensive understanding and working knowledge of contemporary investigative techniques and relevant legislation.
If you have any questions regarding your workplace investigations, please contact one of INVision’s Directors via our website at www.inv.com.au
http://www.humanresourcesmagazine.com.au/articles/d2/0c01d8d2.asp, authors Craig Taylor, Julia Sutherland and Marie-Claire Foley
http://www.wiseinvestigations.com.au, author Jo Kamira