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What happens if you are the one being investigated?

15/03/2019 4:10 PM

What happens if you are the one being investigated?

WHAT HAPPENS IF YOU’RE THE ONE BEING INVESTIGATED IN THE WORKPLACE?

I was called into HR today and told that a member of my team has alleged that I have bullied him. I was given a letter with some allegations and told he will be reporting to someone else while the matter is investigated. I have no idea what this is about. I have always treated him respectfully but I have had to give him some constructive criticism about his work performance recently. What should I do?

You are probably feeling pretty depressed or even angry right now, but there are some important things you should focus on to make sure that you are treated fairly in this situation.

1. Make sure you have sufficient information

Go through the allegations in the letter carefully. Do you understand them? Do you have any knowledge of the incidents referred to?

Procedural fairness requires that you should have enough information about the allegations to understand what is alleged against you and be able to respond. This may include matters like dates, what you are alleged to have said or done and who was present.

You may also be entitled to copies of documents if the allegations cannot be understood on their own or you need access to specific information in order to respond.

If you believe there is not enough information for you to understand and respond, write to HR setting out the omissions and asking for the information you need. It is possible, however, that some details may only be able to be provided once the investigator has spoken to the complainant or witnesses.

2. Check the procedures are being followed

In your workplace, allegations of bullying or grievances about behaviour may be governed by a policy, award, agreement or legislation. Find out what applies and check that the proper procedures have been followed. If there seems to be a difference between what is being done in your case and what should be done, raise it with the employer or the investigator. For example, is the employer required to try mediation or other informal processes before an investigation is launched? Is the investigation taking a long time to get started? What measures is the employer taking to ensure the matter is handled confidentially and doesn’t become the subject of office gossip?

3. Consider if mediation is an option

If it is a matter of interpersonal conflict that has given rise to the allegation, offering to take part in a mediation or facilitated discussion with the person may help resolve the issue. Some allegations of this kind can be resolved without the expense and distress caused by an investigation, if it is possible and safe for the parties to discuss the problems affecting their working relationship. It will not succeed, however, unless both parties are willing. A qualified and experienced conflict resolution specialist who is acceptable to both of you should be engaged.

4. Don’t victimise anyone

Any attempt to victimise or retaliate against the person who made the complaint or any witnesses, could be unlawful and will probably lead to further allegations against you. If you suspect the allegation is malicious, you can provide reasons for your opinion to the investigator and suggest that they speak to witnesses or look at documents that will support that finding.

5. Ask for help

To state the obvious, this is a very stressful experience, and you need to build up your resilience and resources to help you get through it. Ask about what employee assistance program your employer provides in this situation, as you may be entitled to free counselling services. If not, think about seeing a counsellor or psychologist. Take some time off if you need it to prepare your response and deal with the stress. Ask someone you trust to be your support person at any interview you attend with the investigator. Seek legal advice if you need it.

 

DISCLAIMER: This article is general ONLY in nature and is not advice

 

Christa Ludlow is a lawyer with over 20 years’ experience in employment law and administrative law, and a qualified coach and mediator. She is a Principal Consultant with WEIR Consulting. WEIR provides workplace conflict resolution, investigation, coaching and training services to clients in the public and private sectors. Contact Christa at christa.ludlow@weirconsult.com.au.

Originally published in Legalwise News, 20/09/2018

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