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Avoiding common mistakes in assessing employee complaints and disclosures

July 13, 2021

Mishandling complaints and allegations, particularly whistleblower disclosures, can harm the individuals involved in them and damage your organisation’s reputation.

Organisations may also be subject to financial penalties of up to 10% of turnover (capped at $125M), with individual staff being liable to fines of up to $3.15M.

Most of the avoidable mistakes occur in the initial stage of assessing complaints and disclosures made under whistleblower legislation. Here are some best practice steps you should take to avoid the pitfalls.

Your first moves

  • Take all complaints and disclosures seriously, and initially form no opinion about their merits
  • Separate the roles of complaints/disclosure manager, investigator and decision-maker
  • If the complainant is a whistleblower, do not disclose to anyone their identity or the information they provide without their consent, unless that disclosure is specifically authorised by law- find out more here and here
  • Discover and document the outcome the complainant wants or expects

Protecting those involved

  • Conduct a risk assessment, including considering the options to ensure the safety of the parties, witnesses and others, and protect the assets and interests and reputation of the business
  • If you are considering suspending an employee while the complaint is being dealt with, fully consider all other viable options that would have lower impact on the employee and the business  
  • Assess whether the complaint would, if proved, be a serious breach of the standards of behaviour you expect from your employees, i.e., misconduct
  • If the matter involves legal issues, obtain legal advice
  • Deal with the complaint in accordance with any procedures contained in the relevant award, industrial agreement and your organisation’s policy for dealing with complaints and misconduct

Determining severity & urgency

  • If you assess that a complaint is a low-level, low-risk grievance or a performance issue, etc., clearly document this and deal with it by alternative dispute resolution- find out more here
  • If the alleged conduct is notifiable or reportable conduct, notify the relevant authorities
  • Ensure the available physical and electronic evidence is identified and secured
  • Immediately impound and isolate any computers or other electronic devices and storage media to ensure any information they might contain is not intentionally or unintentionally corrupted, removed or overwritten. Maintain a complete record of how and where they are stored and who has access to them

Involving external expertise

  • If you assess the complaint involves alleged misconduct or an inappropriate state of affairs or circumstances (as defined in the whistleblower protection provisions in the Corporations Act), assign or engage a qualified and experienced independent investigator to investigate the matter
  • Provide detailed terms of reference to the investigator
  • Ensure the investigator declares any actual or perceivable conflict of interest or bias, and appropriately addresses any matters disclosed in such declarations
  • Advise the parties to the complaint (complainant and respondent) at the appropriate time that an investigation has commenced and the need for them to maintain confidentiality, having regard to the integrity of the investigation and evidence gathering process
  • Ensure that the respondent is advised of the allegations made about them and that they are given the opportunity to respond to them (procedural fairness)
  • Ensure welfare support is provided to the complainant, any subjects of allegations, and any other parties who may be affected
  • Maintain appropriate confidentiality as to the identities of the parties, the content of the complaint/disclosure, and the fact that an investigation is underway

How Centium can help

Centium’s team of 12 senior Investigators (including the former NSW Deputy Ombudsman) has extensive experience in undertaking confidential and sensitive assessments, reviews and investigations resulting from employee complaints and disclosures that relate to alleged workplace misconduct.

As a result of this collective experience, we are well qualified to guide you through all phases of the complaint handling process. We can also provide training for your internal complaint handlers and investigators.

To discuss your investigation needs, browse Centium's Ethical Conduct & Investigations services. Additionally, for more information about how our learning and development solutions can meet your unique needs and circumstances, please contact us or check out our Learning and Development services.

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