by: Paul Curby

Organisations dealing with internal disciplinary complaints need to balance a complainant’s right to be heard and, at the same time, ensure that a potential Respondent is protected, principles of natural justice are followed and a fair and unbiassed investigation is delivered. 

The question I often ask a client is whether they have considered not immediately conducting a ‘formal investigation’ (i.e. notifying and putting allegations to a respondent).  Instead, consider conducting a preliminary fact-finding investigation in order to, where possible and appropriate, first test the veracity of the complaint by undertaking preliminary inquiries which may (or may not) require the need to speak with the person/s subject of the complaint.

The investigative process is designed to elicit relevant facts from witnesses interviewed (including the complainant).  Witnesses are given an opportunity to provide a version of events, offer up documentary evidence (e.g. emails and other documents) as well as any other records that may be relevant.  They may be able to provide a record of a particular conversation or recall what was said where these details might be particularly relevant. Importantly, they may know of other witnesses who may be able to provide supportive evidence of their version. 

Obtaining the relevant parties’ versions can help determine whether the complaint has merit. You may find that after undertaking inquiries as part of a preliminary fact-finding investigation, that the evidence is not supportive of the conduct alleged and it is therefore not necessary or appropriate to proceed with putting the named respondent through a formal misconduct investigation.

Formal investigations are often stressful for everyone involved, particularly a respondent.  Careers and reputations  can be at risk. Often, the investigation can take some time to complete, and if assessed with allegations being serious may result in the named respondent(s) being suspended or moved to alternate duties whilst the formal investigation is undertaken.  

Complaints can be made in good faith, albeit with the complainant not knowing all the information/facts which, if they did know, may not have resulted in a complaint being made.

The nature of investigations is such that other staff may learn of an investigation being conducted.  From an organisational culture perspective, other staff are interested in how the organisation handles the investigation and, importantly, how staff involved are treated on the journey.   The biggest mistake is for an organisation to forget about staff not directly involved in the matter being investigated.  Like it or not, there will be interest on the sidelines.  Witnesses can, and will talk (despite being asked not to) and share their experience.  It is therefore important for an organisation to assess how best to proceed with the matter and whether they have the appropriate inhouse capability and expertise to investigate and whether such resource is sufficiently independent.

It is incumbent on the investigator to ensure that everyone is treated equally, fairly, respectfully and with care; this includes the complainant, witnesses and the named respondent(s).  This doesn’t mean that you can’t ask hard questions, it is important you do.  It just needs to be done respectfully.

Our experience across government and private sector is that there are vastly different policies and protocols in dealing with complaints.  I’ve seen best practice where the protocols are clear cut and other policies that lead to ambiguity.  As this is a different topic altogether, I won’t discuss this further in this blog. 

Deciding on whether a broader preliminary fact-finding investigation is the better option rather than launching straight into a formal code of conduct investigation will depend on the nature of the particular matter.  For instance, the likelihood of physical evidence being destroyed could be a consideration.

If it is decided to initially deal with the matter as a broad fact-finding investigation, how then do you deal with the details outlined in the complaint? 

Dealing with Complaints as Assertions

Recently, in preliminary fact-finding investigations only, I have developed the concept of dealing with complaints as ‘assertions’ rather than ‘allegations’.  In treating a complaint as an assertion, gives flexibility to interview witnesses as well as the person/s nominated (potential respondent) in a less confrontational manner and, without the need to put formal allegations to them. 

The benefit of this approach is that the person/s nominated is/are given an opportunity to provide additional information and/or evidence.  This wider approach can better help determine, with the benefit of more complete information, whether or not the information supports the initial assertions (complaint). 

In a preliminary fact-finding investigation, we generally report to our client as follows;

• We find that the assertion is supported by the evidence, OR
• We find this assertion is not supported by the evidence.

If the assertion is further supported by evidence of fact, then we can work with our client to formulate ‘allegations’ to be put to a respondent in line with potential breaches of an organisation’s policies and procedures. 

If the assertion/s is not supported, then the organisation has avoided the need to put formal allegations to any person and the matter is closed out.  The aim being that this approach is less confrontational, will minimise the potential damage to existing relationships and allow people to heal and move forward, hopefully with a better perspective of why the original complaint was initiated in the first instance.

Linkedin – Assertion or Allegation: Which one to adopt with a Disciplinary Complaint?