How to deliver a psychosocially safe workplace misconduct investigation

When allegations of misconduct occur, the next steps the employer takes are pivotal in protecting the entity's integrity and reputation, as well as the wellbeing and safety of those involved.

An investigation, regardless of the seriousness of the allegations, can be stressful for all parties involved. For government agencies, businesses, and not-for-profits alike, it is important that the investigation be conducted in accordance with your organisation's policies and procedures, and that procedural fairness be afforded to all parties involved.

All interviews should be conducted with a trauma informed approach, with all persons interviewed being provided access to support services during and following the investigation.

How can we best manage investigations to ensure, as far as reasonably possible, a psychosocially safe, fair and transparent investigation? Here are some initial, and very important considerations:

1. The skillset and experience of the investigator. Does the investigator have the required skills and training to undertake the type of investigation contemplated? Has the investigator undertaken similar investigations previously?
2. Decision making. Who within your organisation will be the decision maker in relation to the outcome of the investigation? This person should not be involved in the investigation and make their decision based upon a fair and balanced analysis of the facts.
3. Investigator manager. Who will manage the investigation from the organisation’s perspective. This person must ensure compliance with the company’s policies and procedures, that the investigation is conducted without bias and that a balanced report is prepared that fairly represents all relevant issues concerning the matter under investigation.

In conducting an investigation, a organisation should be mindful of the following:

• Whistleblower management
• Preliminary assessment
• Scope and approach
• Balanced investigation
• Reporting.

Whistleblower and complaints management

Many investigations originate from a report made by a whistleblower. Usually, the whistleblower has witnessed the misconduct or come by information that has led to a suspicion that misconduct has occurred and/or is ongoing. Typically, a whistleblower will be concerned as to how they will be protected from any form of retribution and that the information that they provide will be thoroughly and properly investigated. Managing these concerns can be challenging and requires experience in dealing with whistleblowers in a psycho-socially safe manner.

Another consideration is whether the disclosure made by the whistleblower is protected under relevant legislation. Regardless of whether it is or not, confidentiality of the communications with the whistleblower and their safety and wellbeing is paramount.

When a whistleblower feels safe and trusts the investigator and the process, the quality of information received often leads to the identification of key evidence and successful resolution of the matter.

Preliminary assessment

The information initially received about a misconduct matter is often limited, so rather than instituting a full-blown investigation, the more prudent approach is to undertake a preliminary assessment of the matter. The assessment should focus on determining the likely veracity of the allegations and identifying clear lines of inquiries to properly investigate the matter in a focussed and cost-effective manner.

Scope and approach

After the initial assessment the following considerations should be addressed in drafting the proposed scope and approach:

• Who are the relevant stakeholders? Should legal counsel, finance, HR, or others be involved in the process?
• Is civil or criminal action required? Or both?
• Should the investigation be undertaken under the protection of Legal Professional Privilege? This is important to consider and decided from the outset
• Where are the sources and locations of evidence? This could include hardcopy documents, softcopy information such as accounting data, including access log data and building access data), digital evidence obtained from personal computers, servers, mobile devices, the cloud ( such as email, text messages), and witnesses (such as employees, suppliers, banks, or any other party that may have relevant evidence)
• Is asset recovery required? It is often possible to recover financial losses, and strategies should be put in place at the outset to ensure stolen assets are secured and a detailed forensic assessment of the quantum of any loss is made
• Is this an overt or covert investigation? Particularly in the preliminary stages of an investigation, covert activities are often preferable. These include the collection of electronic and other evidence and the use of mobile or static surveillance (we have used this at PKF in several matters, and it has been invaluable)
• Are there any suspect employees to be suspended or stood-down pending the outcome of the investigation? HR and Legal should be involved in these deliberations
• What are the reporting protocols? Who needs to know about the progress of the investigation and how often?
• Are we clear on the type and format of the ultimate report? Is agreement required?
• What is the cost of the investigation? Has there been an allowance for a skilled external party to be involved? Is the cost of the investigation (or part of) being included in the amount of money that may be recovered from the offending party or covered by insurance?

Execution of detailed investigation

Once the investigation, scope, and approach have been agreed, the investigation can commence building upon what has been learnt during the initial assessment. It is important to conduct regular briefings between management and the investigator to ensure adherence to the agreed scope and approach and to deal with any issues as the investigation continues.

The investigation should have minimal impact upon the operations of the business, and all stakeholders should have confidence in the process. The investigation should be conducted transparently and without bias.

The objective of the investigation is to gather all relevant facts, corroborate those facts and then draw logical supportable findings.

Case management and record keeping are extremely important to protecting the integrity of the investigation.

Reporting

Once the investigation has been completed, an investigation report should be completed. This should be succinct, outlining the facts, the basis upon which findings are made (referencing the information relevant to the findings) throughout the report.

Consideration should be given to identifying the root cause of the event(s) in order to, as far as possible, limit the likelihood of similar events in the future.

Conclusion

Misconduct investigations can be quite challenging to navigate if important factors and consequences of actions are not properly considered.

Upon deciding a misconduct investigation is necessary, it should be properly planned and executed using appropriately skilled and experienced investigators. If it isn’t, an organisation leaves itself open to possible litigation, adverse publicity, damage to its reputation, and harm to its people.

At PKF Integrity, we offer a comprehensive solution that covers everything from policy development to training, an external whistleblower and complaints management platform, and a national team of highly qualified investigators.

Contact us to explore how we can support your organisation, and help to elevate its standing as an employer of choice.