TO INVESTIGATE OR NOT – WHAT IS THE ANSWER?

As workplace investigators and dispute resolution specialists, there are two workplace scenarios we see frequently.  

  • The employer wants to investigate a complaint which could have been resolved by an alternative dispute resolution process and/or conflict coaching. 
  • The employer calls in an investigator because attempts to resolve the complaint by alternative dispute resolution have failed.  

Both scenarios create headaches for the employer. But how do you decide which approach has the best chance of success? 

Alternative dispute resolution (ADR) methods which are used in the workplace include mediation, facilitated discussions and conflict coaching.  

In our experience, here are some signs that ADR methods may be the appropriate course for dealing with a complaint: 

  • The complaint is initially assessed as a workplace grievance. Grievances often arise from interpersonal conflict such as a disagreement between colleagues, disagreement about the way work is organised or allocated or about the application of a policy or procedures. They can also arise by way of a complaint about behaviour or perceived unfairness.   
  • The complaint is very vague, even after you ask for more details. If the complainant can’t provide specifics, it will be difficult to investigate successfully. The complaints may be a sign of general tension or systemic problems rather than behaviour which is not acceptable in the workplace.   
  • The complaint concerns a single incident. Unless that incident is serious, then this may be an opportunity to resolve the situation in a timely way through ADR. Even it is serious consider if it may be a sign of a health issue, stress or some other factor affecting the alleged perpetrator which is not the norm.  
  • The complaint is trivial or would not amount to misconduct if it was proven. For example, not approving an employee’s application for leave, could be reasonable management action.  

In general, ADR processes can resolve grievances even where there is a power imbalance (for example between a junior and senior employee). Such situations should be approached cautiously, however, and steps should be taken to place the parties on an equal footing in the process.  

The exception is complaints of bullying, in which case the complaint should be assessed for risks by a suitably qualified and experienced ADR specialist. Whilst some bullying complaints can be successfully managed through ADR processes, it is necessary to evaluate whether or not the dispute resolution process itself may end up being used as a tool to continue the bullying behaviour. You may also need to implement other processes such as coaching for the individuals concerned. 

Generally, ADR will not be appropriate where: 

  • The conduct complained of meets the threshold of misconduct, for example serious bullying, or where the alleged behaviour would be, if proven, a clear and serious breach of workplace standards.  
  • One or both of the parties are not willing and/or able to participate. This might include one employee being anxious about meeting face to face, or a medical or psychological condition. 
  • An assessment of the complaint determines that there is a risk to either an employee, the organisation or others, and that controls should be put in place to manage those risks. This might include situations where: 
  • there is a risk of psychological or physical harm. 
  • an active workers compensation claim is being processed in relation to the complaint.  
  • one or both of the parties are absent from the workplace due to workplace stress related to the complaint.  
  • a complaint has been made to an external government body (that body, however, may propose mediation as part of their processes). 
  • there are allegations of unlawful or criminal conduct  
  • there is media attention or a risk that one party may not take part in good faith. 

You should also consult your workplace policies, awards or agreements as these may contain rules about when to manage the situation via ADR or investigation.  

The most important thing is to fully assess the situation and consult the parties before making a decision about which process to use.  

WEIR Consulting provides services in all areas of workplace conduct and investigation. We also provide services to help resolve workplace conflict, including mediation, facilitated discussion and conflict coaching, and coaching to improve workplace behaviours. In managing workplace conflicts, WEIR has designed a Facilitated Discussion Process that uses a mixed methodology of mediation, workshopping and one-on-one sessions as the platform for reaching an agreed outcome and managing the workplace relationship. 

For further information, contact us

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