Misconduct investigations avoid bias

May 31, 2017

It is not uncommon especially when the outcome is disputed, for an employee subject of a complaint or grievance to claim that the investigation was unfair or investigator was biased or perhaps a conflict of interest existed, especially if there is an adverse finding.

How do you counter an employee’s claim that you may be biased in the investigation if you have prior knowledge of the parties and there is no one else that can conduct the investigation?

This is very common problem faced by HR professionals and managers after all you are part of the organisation, you know the people involved, you may have had previous adverse dealings with the person subject of the complaint or grievance.  Complainants may also raise the issue of bias or a conflict of interest if the outcome is not what they expected or desired.

Choosing an appropriate investigator is an important part of the investigation process. Where the proposed investigator has prior knowledge of the parties, even if there is no actual bias or conflict of interest it may give rise to a perception of bias, and this perception by the employee might be hard to combat.

In the case of Mr Michael Fitzpatrick v Bunnings Group Ltd T/A Bunnings [2014] FWC 1869, the Fair Work Commission found that the employee’s dismissal was unfair, in part because the Company’s choice of investigator created the perception of bias, if not actual bias.

You must be careful when choosing the investigator, if there is no one in your organisation who is suitably qualified, experienced, confident and has the time to conduct the investigation, you may wish to consider appointing an external investigator who has no prior knowledge of the parties and is able to conduct a completely impartial and unbiased investigation

Another issue that is well worth considering is that as a manager or HR manager you will still have to deal with the parties after the investigation. Investigations by their nature often appear to have winners and losers, if the complaint is substantiated the complainant wins, if it is not the person subject of the complaint of grievance (the respondent) wins and you then have to deal with and manager the loser.  It could be argued that telling the loser that the matter was investigated by an external expert gets you off the hook.

External investigators are independent they don’t have a vested interest in the outcome of the investigation. Such independence obviously doesn’t exist when professionals investigate activities of people within their own team or of someone they report to.

This is general information only and does not constitute legal or any other form of advice. If you would like assistance with a workplace matter such as this, or if you require the services of an independent investigator, contact Phil O’Toole  at Centium. Centium has conducted many workplace and employment related investigations and can share lessons learnt and good practices observed across industry.

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