• Nicki

5 mistakes employers make when investigating misconduct

Full disclosure, I don't plan my blog content. Like at all. I have set myself a challenge of 1 blog per week, and when I get to the end of the week and that blank screen is staring at me, I ALWAYS just pick something that is relevant to me at that time.

So today you have all benefited from my ongoing studies to become a qualified and licensed investigator!

I have been around the proverbial HR block a few times in my 15 years as a practitioner. I have been part of some excellent workplace investigations that would make Detective's Benson and Stabler of SVU proud! But I have also seen the ramifications of how poorly executed workplace investigations play out, and the damage and loss that they cause years later.

So what are 5 common mistakes that employers make when investigation workplace misconduct?

  1. Making rash decisions. We've all seen it. An allegation is received, a manager immediately confronts the alleged perpetrator, who then reacts poorly, everything escalates and you end up with people quitting, getting into verbal or physical altercations, or at the very base level - acting in a way that will definitely derail any good investigative process if it were to occur. The lesson? Take a deep breath. Take counsel, whether that be your manager, HR Rep or other experienced person. Slow and steady wins this race.

  2. Talking outside of school. While it is totally acceptable to seek counsel with HR or a senior manager (as I recommended above), you shouldn't be sharing the news of the impending investigation or the details of the alleged misconduct with any other employee - even the really good ones!

  3. Not giving the alleged perpetrator the appropriate rights to a fair process. Firstly, they need to know what they are alleged to have done. Secondly, they have a right to support in any meetings where their employment may be at risk, so offer it straight up. It is their right to seek union or legal advice about the matter. They also have the right to know the evidence you hold against them. The witness matter is tricky - too tricky for this short blog, so call us if you have queries). Also time..... make sure you give them the appropriate amount of time to get their thoughts, support and statements in order. Not providings these rights can come back and bight you. Hard.

  4. Not relying on the hard facts to make a decision. I've seen investigations where there is NO WAY the evidence supported the allegation, but out of fear that the other staff would revolt if the alleged perpetrator wasn't fired, they made a decision to terminate - despite the evidence being of very poor standard. That ended up in the Fair Work Commission, and the employee was reinstated. Hard lesson to learn for everyone there, I'd imagine.

  5. Confusing misconduct and serious misconduct. One is bad results in disciplinary action and results in disciplinary action. One is bad and can result in immediate dismissal with no notice. While the Fair Work Act spells out what exactly Serious Misconduct is, there is wiggle room and room for interpretation. This is wear good HR advice really comes in handy. How many other people do you know read employment case law over breakfast and casually discuss the implications of the commissions recent decisions over coffee? Not many managers or business owners. Defer to the experts if you're unsure.

If you want to know more about workplace investigations in your small business, I'm running a free webinar in June! Simply pop to the events tab on my website, and RSVP. Consider this little blog a tiny taste of what's to come! There'll be plenty of time to ask questions, so make sure you lock it in!

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