Taking a tick-box approach to workplace investigations can expose your business to significant risks. Two legal experts provide HR practitioners with best-practice tips for managing workplace complaints.
Recently, numerous media reports have highlighted the mishandling of sexual harassment and toxic workplace complaints, alleged cover-ups of senior executive misconduct, and unsatisfactory complaint handling within organisations.
This is surprising given the evolving community and business standards, as well as recent legislative reforms that impose a positive duty on businesses to eliminate, as far as possible, various unlawful behaviors related to sexual conduct in the workplace or in connection to work.
When speaking to business leaders, seasoned HR professionals, and people managers, they often assert that their organizations have addressed the positive duty and have robust systems for handling sexual harassment and toxic workplace behaviour.
However, this response may be similar to past proclamations by some employers who claimed they had no issues with underpayments of employee wages, only to discover later that they had been underpaying employees for years, often unintentionally.
So, what’s missing? Why do organisations still seem to get it wrong?
In August 2023, the Australian Human Rights Commission published guidelines that included practical examples of what employers should proactively do to comply with their positive duty to eliminate unlawful sexual behavior in the workplace. The 112-page guideline makes it clear that a box-ticking exercise is insufficient.
The guidelines indicate that companies with strong culture and governance can effectively prevent and respond to workplace misconduct by:
Having Clear Complaint Handling Procedures: Ensure these procedures are well-known within the organization so employees feel safe to report unsatisfactory workplace behavior early.
Creating Support Mechanisms: Provide internal support through contact officers and peer support networks trained in receiving disclosures of unlawful conduct. Engage external specialist support through Employee Assistance Programs.
Ensuring Fair and Consistent Investigations: Conduct investigations into allegations of unsatisfactory workplace conduct in a fair and consistent manner to build confidence in the organization’s commitment to a safe and inclusive work environment.
Below, we provide an overview of what boards, senior managers, HR, legal, and risk professionals should be doing at a minimum, along with best-practice tips for complaint handling and investigations to ensure the safety of their workers.
This guidance should help employers and HR avoid reputational damage that can arise when these issues are not managed to the high standards now expected by workers, the government, and the broader community.
Best-Practice Complaint Handling
While best practices will vary depending on organization size, operations (e.g., remote or international), HR capacity, etc., employers should generally implement the following steps to ensure complaints are handled appropriately:
Consult with Workers: Engage with workers about existing and proposed complaint handling measures. This consultation helps obtain practical knowledge and experience to make informed decisions about handling complaints safely.
Implement a Workplace Policy: Develop a clear, concise policy outlining the complaint handling procedure, including:
How to make a complaint or raise a concern.
Confidentiality assurances.
Seriousness of complaints.
Immediate actions and expected timeframes.
Safety and wellbeing options.
Informal and formal resolution options.
Possible consequences for misconduct.
Feedback mechanisms for the policy.
Implement a Bystander Policy: Set expectations for workers to report any inappropriate conduct they witness.
Regular Communication: Continuously communicate relevant policies and procedures to employees, ensuring they are embedded with knowledge about the organization’s expectations and rules.
Access to Information: Ensure the complaint handling policy and procedures are easily accessible and publicized to all workers.
Appropriate Training: Provide tailored training to all workers, with specific training for managers and those with people management responsibilities. This training should cover obligations, knowledge, and response protocols.
Best-Practice Investigations
Once a complaint is reported, appropriate action must be taken within a reasonable timeframe. This involves:
Risk Assessment: Determine if workplace adjustments are needed to protect the complainant and ensure confidentiality.
Select an Investigator: Decide whether the investigation will be internal or external, ensuring the investigator is impartial and trained.
Communicate Next Steps: Clearly communicate the investigation process, including timeframes and potential outcomes, to all relevant parties.
Review Policies and Procedures: Ensure compliance with the organization’s policies and procedures related to complaint handling and investigations.
Conduct Fair Interviews: Interview the complainant, relevant witnesses, and the alleged perpetrator fairly and objectively, avoiding leading questions.
Record Keeping: Maintain clear and comprehensive records of all steps taken, including interview transcripts and evidence.
Investigation Report: Prepare a report with findings of fact and, if requested, recommendations or determinations.
Communicate Findings: Appropriately communicate the findings and any decisions to all parties involved, ensuring procedural fairness.
What Should HR Do Next?
It’s clear that workers and the wider community are increasingly holding businesses to higher standards for providing a safe and inclusive work environment. Organisations must review their governance structures to ensure they have effective prevention and response plans, including adequate complaint handling systems and proper workplace investigations.
Failure to do so can have far-reaching consequences, damaging the organization’s reputation, workplace culture, and trust in leadership, which can take significant time and resources to repair.
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