Part 1 of this series covered some of the reasons investigations become necessary. This part provides some important investigation process tips.
Although investigators cannot guarantee confidentiality, they should do everything in their power to keep confidential:
the source of the investigation (including the names of any whistleblowers);
the fact an investigation is taking place and the subject matter;
the identity of the person(s) under investigation;
the identities of any witnesses; and
any documents gathered during the course of the investigation.
Any witnesses interviewed in the course of an investigation should be advised not to discuss the matter with other people. Before interviewing a witness, investigators need to ask that person whether they have discussed the matter with anyone else.
Interpersonal approach to investigations
Here are some tips to get the most out of investigation interviews.
Employ active and reflective listening to ensure the speaker and listener achieve an accurate outcome.
Listen with concentration, attention and comprehension (trying to put oneself in the shoes of the speaker); the speaker will instinctively trust an effective listener to accept the speaker’s story without judgment.
Take out the emotion (non-verbal cues are usually indicators of emotions); be patient!
Acknowledge understanding and make sure it is correct; explain to the speaker that what they have said has been understood (even if not agree with).
Ask questions that will encourage the speaker to provide specific information.
The key to gathering information is to start by getting the cooperation of people; they are more likely to provide useful information if they are:
told the general purpose and importance of the request;
not demanded or threatened to provide the information; and
made to feel they are making a substantial contribution to the process.
The role of procedural fairness
The principles of procedural fairness in investigations are essential; they involve:
not being biased; and
giving a fair hearing.
When should the subject of the investigation be told about the allegations or given a chance to respond?
The right to be informed about the substance of allegations or adverse comment and the opportunity to be heard must be given before any final decision is made or a file note or letter is placed on the employee’s file. The point in time at which the person who is the subject of the complaint or alleged misconduct is informed of the allegations will depend on the circumstances of each case.
The following basic principles may help.
There may be circumstances when initial inquiries or the early stages of an investigation reveal that there is no case to answer. In this event, it may not be necessary to inform the subject employee at all if they are unaware of the investigation; this may save the person from suffering unnecessary stress. However, if anything is to be recorded on the employee’s file, they should be told.
If the identity of an alleged wrongdoer is unknown, no-one should be notified of the allegations unless they are clearly suspected.
When the person who is the subject of complaint or alleged misconduct is to be interviewed, it is normally considered appropriate to delay informing them of the substance of the allegations until the interview if it appears that evidence could be tampered with or witnesses approached. Specifically, an investigator should be cautious about informing the person if there is a risk that:
documents may be destroyed;
records may be amended;
post-dated records may be produced;
collusion may take place, particularly if more than one person is involved; or
a key witness is in a position to be pressured or influenced (for example, a subordinate of the person under investigation).
Part 3 of the series will cover the investigation plan.