Psychosocial and legal risk doesn’t dissipate after a workplace investigation is closed. An employment lawyer and HR leader unpack some considerations for HR to keep in mind.
The post-investigation period can open up a significant risk window for employers, right when they might think the case is shut.
While Australian law doesn’t set out a single investigation code for all workplaces, procedural fairness principles are upheld by the Fair Work system and case law, says Ines Balint MAHRI, Special Counsel – Employment Law at Coulter Legal.
“Investigations need to happen. They’re a managerial prerogative and a way for an organisation to ensure they’re meeting their procedurally fair requirements under various legislation, including the Fair Work Act,” says Balint.
However, they can also be rife with risk.
“The biggest mistake HR can make is assuming that [when] the investigation is done and dusted, there’s then no impact, no emotion and no fall out,” says Belinda Perisic FCPHR, Chief Operating Officer/Director at Coulter Legal.
The cost of getting the post-investigation period wrong rarely shows up straight away, says Perisic. It tends to arrive later in the form of team conflict, disengagement, resignations, damaged reputation, and, in the worst cases, psychological injury and/or regulatory attention.
Below, Balint and Perisic explain some key considerations HR should keep in mind when navigating the post-investigation period.
1. What can HR tell the affected employees?
Organisations are often hyper-cautious and hesitant to communicate investigation findings in writing, but this doesn’t mean nothing can be said. It just needs to be done carefully, says Balint.
“The key is to get the balance right,” she says.
This might look like:
- Discussing the process that was followed and the team members it involved.
- Confirming the outcome of the investigation without revealing the details of the complaint and what the actual findings were.
For example, this might look like saying: ‘As we all know, there was an investigation into complaints of inappropriate workplace conduct. It involved several people. I can confirm the investigation is now complete and I can also confirm that Joe Bloggs has left the organisation.’
At this point you would discuss the plans for the team and the potential impact it will have, such as the introduction of a new manager, any workload considerations and any process/policy shifts that might come off the back of the incident.
“This addresses the elephant in the room without compromising confidentiality,” says Balint.
“You can put all of the confidentiality requirements in place that you possibly can, and people will still have an opinion and talk.” – Belinda Perisic FCPHR, Chief Operating Officer/Director at Coulter Legal.
When advising a complainant on the outcome of an investigation, what HR can say depends on the outcome, says Balint.
One example might be if an employee has made a serious allegation against a co-worker who is put on leave while the investigation takes place.
If a complaint is substantiated, but the respondent is permitted to return to the workplace, Balint suggests telling the complainant that a finding was made.
For example, in the case of workplace bullying, she suggests confirming whether or not the behaviour was substantiated in the investigation, then outlining that the person is working on their behaviour or undertaking training as part of corrective actions identified, and clarifying that support is available for any impacted team members.
If a complaint isn’t substantiated, Perisic says it’s important to state the facts and clearly explain how future concerns can be raised.
This might look like:
- Amending the process to allow complaints to go directly to HR, rather than the people leader for a period of time. This way the people leader can focus on supporting the team in a day-to-day capacity.
- Ensuring HR or the people leader’s presence is obvious for a period of time, so they can support the team, and then setting up structured periodic reviews on an ongoing basis.
Balint adds that HR should give the complainant space to challenge the decision and ensure they understand the internal appeals process.
“Where a complainant challenges the findings it would be about reiterating why the investigator made a certain finding – for example, ‘On the balance of probabilities, the investigator found the conduct did not happen as alleged.’”
Explaining what they can and can’t share with the affected employees can also help to bridge the ‘communication gap’ that usually grows in these scenarios.
“Witnesses are told that there’s an investigation and asked really specific questions. Usually, they can figure out who’s being investigated, and then they never hear anything again,” she says.
When witnesses are outside the team, she says it’s important to go back to them and reiterate the process, their involvement and the appropriate corrective action taken now that the investigation has ended.
Perisic adds that HR can help minimise this communication gap.
“I’ll often say to the people involved, ‘I really appreciate your involvement in this. I need to tell you that I may not be able to communicate what happens after this,’” she says. “This helps to set expectations from the start.”
Get up to speed with workplace investigation best-practice with our Investigating Workplace Misconduct course.
2. How should HR respond to rumours about a departure?
It’s almost inevitable that the rumour mill will start running following an investigation, says Perisic.
“You can put all of the confidentiality requirements in place that you possibly can, and people will still have an opinion and talk.
“The investigator will have the information and nobody else will have the full picture. So they’ll always be making their assumptions based on the small piece of the pizza that’s sitting in front of them.”
One way to get ahead of rumours is to communicate the outcome and next steps with the affected teams in one go, and then follow up with individual catch-ups, says Balint.
“By signposting and communicating the legal requirements of the situation, employees think, ‘We’re all being treated the same way.’ It alleviates their concerns.
“The minute things are uncertain and we don’t have all the details, we make assumptions.”
In the one-on-one conversations with affected employees, Perisic recommends asking them about how they’re feeling about the investigation. This could look like asking: ‘I’ve noticed this happening after the investigation. Can you help me understand what this means for you?’
“You’ve got an opportunity for the employee to say what they need to say, unlike during the investigation where your process will drive the questions you need to ask.”
3. What should HR do when people leaders won’t engage in the post-investigation process?
One of the biggest challenges HR face after an investigation is people leaders wanting to sweep the situation under the rug, says Balint.
“They’ll often treat [the outcome] like, ‘We’ll never talk about it again. We’ll just all move forward, and act like it never happened.’”
Aside from this creating a culture of silence, Balint warns that it can mean people managers won’t be on the lookout for early warning signs of ongoing psychosocial harm – such as employees withdrawing from their usual actions or reducing their involvement in team discussions, when they used to be someone who would put their hand up to help and chat – and might only flag this to HR when it’s too late.
Leaders need support too, she adds.
Perisic recalls an incident earlier in her career where a senior manager broke down while asking her about how the investigation about a colleague would pan out.
“They were asking me, ‘What am I going to do now? I can’t do all this work by myself. We’re never going to fill that role again.’”
She says it’s important to offer senior employees a safe space to work through those emotions so they can refocus their attention on supporting the team as they navigate the change.
“The biggest mistake HR can make is assuming that [when] the investigation is done and dusted, there’s then no impact, no emotion and no fall out.” – Belinda Perisic FCPHR, Chief Operating Officer/Director at Coulter Legal.
4. What should a post-investigation communication plan include?
Often the strongest way to ensure employees feel supported after an investigation is to provide them with clarity.
Early in her career, Perisic handled a serious investigation where she could only tell staff that the person the investigation was about wasn’t returning to work – not why.
“The next step really hadn’t been considered,” she says.
Following an investigation that led to the immediate termination of an employee for serious misconduct, leadership navigated a sharply divided team response. Those directly impacted by the behaviour welcomed the dismissal, while unaware colleagues felt distressed and frustrated by the sudden influx of extra work.
In response, they brought the team together to clarify that the decision was rooted in upholding a safe working environment, while quickly bringing in senior staff from other locations to alleviate workload pressures and restore stability.
With this experience in mind, she now builds a communication plan for the post-investigation phase, which outlines: what happened, what the company is doing and what comes next.
“Take some time to think through the multiple outcomes that could occur at the conclusion of an investigation and plan how you will communicate that,” she says. “Think about those you need to share information with and consider how they might respond. Then plan for that conversation.
“Nine times out of ten, they’re not going to happen, but you feel much more prepared walking into the room.”
“The biggest cost is you lose good people.” – Ines Balint, Special Counsel, Coulter Legal.
5. When should HR look beyond the individuals and address team culture?
Sometimes an investigation reveals more than the original complaint. Balint recalls a matter involving a team of 13 people, from her time working in HR.
The complaint was about “banter gone wrong”. But when she interviewed the respondent, they said the complainant had said similar things in the past. As more colleagues were called in, a wider picture emerged of varying levels of unprofessional conduct across the team.
“Every time you picked up a rock, there was something else underneath,” she says.
The business chose to respond to the culture itself. It ran culture and teamwork workshops and brought in training on the specific behaviours.
“It meant we actually saw real change to the culture, without having to lose employees or move employees [which would have] disrupted production in an environment where it was hard to find skilled people.”
Justifying the cost of training to the business is a matter of considering the bigger cost that can result from poor organisational culture, she adds.
“The biggest cost is you lose good people.”
All information, content and materials available on this site are for general informational purposes only. The contents of this article do not constitute legal advice and should not be relied upon as such.
🧰 HR’s career resource toolkit
- Course: Get up to speed with workplace investigation best-practice with our Investigating Workplace Misconduct course
- Article: What to do before, during and after a workplace investigation
- Article: HR’s guide to complaint handling and workplace investigations
