An investigation in the balance… It’s the case that all HR managers dread… You investigate, but it is all he said / she said… If the allegations are substantiated termination is likely! But if they cannot be substantiated then what happens??? How do you weigh the evidence? What if you believe one person more than the other but you are not sure why… What if no one actually saw it happen… Balancing this can feel complicated. But the good news, believe it or not, this is not as scary as it sounds and there is a way through. As a workplace investigator, I have had many of these situations over the years. Let me share a recent one which was tough. On the showroom floor, Simon claimed that David had pushed him over and as a consequence, he had broken his arm. David denied the allegations. He said there had been no confrontation and the first he knew of it was when the Site Manager came out to ask him what he had done to Simon! David was surprised and shocked at these allegations. He alleged back that it was a lie and that Simon should be sacked for making it up!!! The Manager knew these two did not get on and had no idea where to go next. That is when I got the call. There was no direct witness evidence to the incident, no ‘smoking gun’ anywhere and it was clear that Simon had sustained a broken arm at the time. However, as a consequence of the investigation the decision was made to summarily terminate Simon for making a false allegation against David. How? Well through a nuanced and well-grounded understanding of the legal and evidential requirements for a workplace investigation… As we know the test that needs to be applied is “beyond all reasonable doubt!”… oh wait, we are not watching Law & Order… The test actually is “on the balance of probabilities”, that is, “more likely to have occurred than not”. So, with this test in mind, as the investigator we evaluated the evidence including important circumstantial evidence. Which included the behaviour of both Simon and David in the immediate aftermath of the alleged incident.
When doing this type of workplace investigation, we need to consider whether there is a greater than 50% chance that the allegation happened or did not happen (as the case maybe). You don’t need to be certain, you don’t need to be 100% sure, you need to be more than 50% sure. Back to Simon’s broken arm. In this case the two contradictory allegations (the push or the making up of the whole incident) required one to be less likely and therefore making the other more likely. After considering the evidence, we were of the firm view that the evidence supported that it was more likely Simon made up the entire incident.
There were two reliable witnesses who gave evidence about the demeanour of both Simon and David in the immediate aftermath of the alleged incident that was entirely inconsistent with any type of confrontation between the two of them. So, after due consideration, the decision was made to terminate Simon, and yes, we are aware of Briginshaw.
It is important to note that Simon had a broken arm, we assume that he fell over. However, we do not need to prove how his arm was broken. Just whether David did, or did not do it.
This can be tough if done inside a business. There are so many layers of people and preconceived ideas about people. Hence often the need for an external investigator. However, HR are often well positioned to conduct investigations as long as they are confident and have the training required. Speaking of training, please see the courses below.
UPCOMING WORKSHOPS FOR HR PRACTITIONERS:
We are delighted to announce two new workshops in a Melbourne CBD location:
Facilitating Difficult Conversations In The Workplace – 26 & 27 July 2017
Workplace Investigations Training – 7 August 2017.
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