One of the biggest misconceptions about workplace investigations is that these investigations are only needed whenever someone commits a crime or theft. This is far from accurate, and here is why.
What is a workplace investigation? An investigation is a fact-finding activity to collect all the relevant information on an incident. A correctly performed investigation can enable an employer to consider the matter and decide on the corrective action to mitigate employment law risk.
When an allegation is made, the employer needs to know what happened, when it happened, where it happened, why it happened, whether anyone else is involved, and if anyone else witnessed what happened.
Are workplace investigations a crucial part of handling certain matters within an organization? In potential severe investigations, a flawed or incomplete investigation can undermine the investigation process and leave employers susceptible to claims regarding unfair termination. For a termination to be fair, an employer must show that they came to their decision due to an ethical and comprehensive investigation.
The workplace, just like any other ecosystem, is a ground for the convergence of people from a multitude of diverse backgrounds, nationalities, religious creeds, and other aspects of personal identity. As fallible and mortal as we are, infractions are bound to happen at the workplace; this is an all too familiar scenario to every HR establishment. The thorny issue that oftentimes defines organizations is how these issues are dealt with once they occur, ideally in a manner that does not create any collateral damage for the organization.
While dealing with these challenging matters may be multifaceted and multidisciplinary, it is essential to have HR at the nerve center of every procedure to ensure fairness and justice to both employees and the organization.
The process of sensitizing employees to the code of conduct for all workers starts at the on boarding stage of the employment process. Before each employee officially begins work, in addition to an offer letter that spells out the terms and conditions of the work, employees should also be furnished with a copy of the employee handbook, as this document gives a detailed account of all the “dos and do nots involved in working with that organization. It also spells out the various policies, procedures, and practices accepted within the organization and the associated sanctions that go with breaches of those standards.
These documents are legal documents that can be tendered as evidence in the event of a legal suit involving an alleged breach by any staff. The handbook should therefore be administered to staff with all the seriousness it deserves. After distributing this information to prospective staff, it is important also that we seize opportunities like staff orientation to reiterate the issues contained in the employee handbook for the prospective staff to digest it properly. Once work starts for these new recruits, monitoring their work should also start in earnest to ensure that whatever transactions are being undertaken are in accordance with the established procedures. It is at this stage that internal auditors and compliance personnel would be needed periodically to evaluate the procedures being applied to complete a task.
It must be noted that simply putting all these measures in place is not exhaustive enough to eliminate fraudulent and underhanded dealings within an organization. Once they occur, we need to have some professional and standardized procedures to bring closure. When there is early detection of a breach of any kind in any organization, it’s important to approach it in accordance with the three-strike sanctions approach widely accepted in HR. This consists of mainly verbal warnings at the first instance, written warnings at the second instance, and finally, if it persists, the third instance should result in a formal complaint about an official investigation. It should also be noted that the three-strike approach may be modified depending on the gravity of the breach, because some instances may require a full-scale investigation upon suspicion.
The Investigative Process
In smaller organizations and businesses, investigations are often conducted by the Human Resource departments. In larger organizations, they may be consultants who are often lawyers, coroners, or other designated staff members. Oftentimes when these investigations are conducted, they are done to achieve the following:
- Ascertain whether any reputational damage has been occasioned by virtue of the conduct.
- Discover the motivations for the affected staff to engage in the alleged act.
- Uncover the magnitude of the alleged act in order to forestall its occurrence.
- Ensure fairness and justice for both the employee and the organization.
The investigator will typically try to keep things as confidential as possible to avoid further eroding employee morale. The investigations should, as much as possible, be brief in order to bring early closure to the issue, but they may last longer depending on the gravity of the breach and its likely impact on the operations of the organization. Officials mostly involved in the conduct of workplace investigation include auditors, lawyers, security personnel, HR practitioners, and other designated officials of consequence to the whole process.
In gathering evidence for the report, one needs to be guided by the following questions:
- Where and when did it happen?
- What was said and/or done?
- Who else was there, or who became aware of it afterward? (If anyone)
- Was there any recourse to the policies and procedures outlined in the handbook, employment letter, etc.?
These may not be infallible procedure questions in investigations, but they do provide an inkling in reconstructing the entire scenario for a better understanding of precisely what might have transpired.
When investigations conclude, considerable finesse must be exercised in disseminating the outcome to the organization. Only the people directly involved are supposed to be in receipt of the investigation report. But in all of these matters, HR, at every step, should ensure that the process is exceptionally evenhanded to avert a needless suit from disgruntled staff. When management finally meets to decide on the way forward based on the final report, a legal opinion should be sought on the agreed process, such as notifying the entire organization, issuing disclaimers, and suing the affected staff. It is also important to balance these legal considerations with the reputational risk or damage that publication of such disclaimers on the alleged conduct might cause the institution.
There are times that it may be necessary to forestall further commission of the alleged infraction in the name of the institution and also to serve as a deterrent to other staff members who may be harboring such intentions. This same act of publication, even though meant to expose the individual involved in the wrongful act, has the potential of also dragging the name of the organization through the mud if not properly communicated. In summary, while it’s important to punish errant staff to instill discipline and protect the business’s image, it’s also important for various stakeholders in the organization to weigh the pros and cons of any course of action before implementing it in the ultimate best interest of the company.
Phidelia Johnson is a global Human Resources Practitioner with eighteen years of leadership success. With a focus on streamlining Human Resources administration, she’s well-equipped to find the right solution to a myriad of concerns. Her experience as a commercial business leader gives her a unique ability to advocate for both the employer and the employee.
In her down time, Phidelia is a master of her kitchen, creating wonderful dishes filled with passion and flavor. If she’s not cooking delicious food, she’s stretched out with a good book. She hopes to use her experience to help others, guide company leaders to best practices, and help build better professionals and stronger organizations.