We all agree that people have a right to complain. We also agree that individuals who are complained about have a right to know the nature of the complaint and be afforded an opportunity to respond. While a good workplace investigator can ensure that both parties receive procedural fairness during the process, they usually cannot (or think they cannot) influence the personal and professional toll that investigations can take on the participants (including on the witnesses). While complainants derive a certain degree of satisfaction and comfort from the fact that their grievance is being examined, respondents may feel despondent, under attack and concerned that the “mud will stick”. They may also feel (rightly or wrongly) that they have been left out in the cold by their manager/team/organisation.
When an investigator is first engaged, it is not uncommon for HR practitioners to distance themselves from the parties involved in an effort to reinforce the neutrality of the investigation process. While this is desirable and at times necessary, it means that the parties may be left without the usual levels of support and communication, even from their colleagues. Whilst the complainant usually has the benefit of having communicated with HR, a contact officer or their union about their complaint and their options, in contrast, once the respondent is informed that there has been a complaint made against them, this may be the last time they have any meaningful communication with HR, save for perhaps being offered the organisation’s employee assistance programme (EAP). As reaffirmed in cases like Hayes & Ors v State of Queensland [2016] QCA 191, employers have obligations to provide reasonable support to employees during investigations. In this case the employer was on notice that the respondents were vulnerable in a hostile workplace, while their conduct was being investigated. The Court found that the events involving the targeting of the respondents were of such significance that it would be reasonable for an employer to have realised that the respondents had been placed in a serious, difficult and vulnerable situation, which would not be quickly resolved. The employer should have known that such employees might be upset and distressed and require more than EAP. For example, they should have been offered support by way of counselling.
Whilst some investigations are carried out promptly, the reality is that investigations can drag on for weeks and sometimes months (as happened in Hayes). It is critical in these situations that the organisation keeps a close eye on the welfare of the parties. Respondents in particular may feel they are the perceived “wrongdoer” and consequently be feeling vulnerable, less able to ask for assistance or admit to the stress they are feeling.
We recommend employers nominate someone, a contact person, to be checking in regularly with the complainant and respondent. Someone who is sensible and emotionally intelligent in terms of providing support, and who has no association with the matters being investigated. HR practitioners, managers, and the contact person should provide regular progress reports and enquire after their well-being. A party may require some gentle prodding to use EAP or seek external counselling support.
As much as employers may hope that it is “business as usual” during an investigation process, this is often not the case and there are many issues to manage. The welfare of the complainant and the respondent to an investigation should not fall through the cracks. Furthermore, there is nothing preventing workplace investigators or instructing lawyers from asking their clients whether all the necessary supports are in place.
For further information about Justitia’s workplace investigations practice, please contact our Managing Partner, Sarah Rey.