Over the holidays I received a fevered call from a good client, “Dave”. He is an HR Officer at a smallish regional hospital. It was a bit of tricky and sensitive matter. It was an allegation of sexual harassment by a woman against another woman and he knew it was based on unwitnessed behaviours in the changerooms at the hospital. Dave also knew there was ‘bad blood’ between these two co-workers. It was stressful as he’d been told “You need to investigate this…..Fast!!!”.
What compounded this for Dave was that the HR Director, his leader, was away on leave – phone off – and Dave was confused about where to start. He was really concerned that he’d mess up the investigation and, in the process, ruin his strong working relationship with line management.
As we like to say at TheZalt Group, “There is always a plan!” So, Dave and I thrashed out a plan together, a pathway forward, and away he went. The first step of the plan was for Dave to develop a Terms of Reference (ToR).
For Workplace Investigations, by creating a ToR you are setting up a pathway on how to conduct your investigation and you are identifying what type of evidence you need to be looking for. The ToR is a scoping document that sets out the parameters of what you are investigating, and sometimes what you are not going to be looking into… which paths you will and will not be travelling down.
So, what should be covered in a basic ToR?
We recommend the following as a starting point:
- Who is the complainant(s)?
- Who is the respondent(s)?
- What are the crucial issues being investigated?
- What is the time frame when the conduct is alleged to have occurred?
- What rule(s) is alleged to have been broken?
- Who is the investigator?
- Who is the decision maker?
- How will this be reported back?
Just by Dave proceeding to record the answers to these questions he calmed down and a range of decisions became apparent. For example, he remembered that it was not up to him to decide what would happen, as he was the Investigator and not the Decision Maker. He also realised that the Decision Maker should not be the Team Leader as they are close personal friends with the Complainant, who is also a Team Leader. This lead Dave to identify that the Decision Maker should be the Department Manager.
Of course, when conducting a Workplace Investigation there are many other decisions that need to be considered and made. It is important to have sound reasoning and understanding to allow you to investigate with certainty and confidence so a clearly defined pathway you are following is essential. Also, in the event that a Workplace Investigation is challenged, either internally or by an external agency such as Fair Work, it will be easier to clearly identify and articulate the reasoning for both substantive and process decisions. Often these decisions are made under great internal pressure and stress, yet they are being examined and probed down the track. So it is important that the ToR actually be in written form. By writing it down and getting them agreed to by the Department Manager, Dave also felt trusted and well supported internally.
Interestingly, whether a Workplace Investigation is being done in-house or by an external provider a Terms of Reference should be prepared. The main difference being, that if you are using an external provider make sure that you ask for a Cost Estimate based on the ToR.
If you are looking at strengthening your confidence, credibility and capability regarding Workplace Investigations, we’d love to see you at our next Workplace Investigations Course on 20th March.
Workplace Investigations 20 March – Melbourne CBD
This training will give HR professionals the skills to develop and implement effective plans for conducting a compliant workplace investigation, the strategies to overcome difficulties along the way and the expertise to make findings of fact and subsequent recommendations. Register Here
Better Conflict 3&4 April – Melbourne CBD
Facilitate difficult conversations in the workplace! Learn the strategies and practical methods to approach, lead and coach conflict resolution in your workplace. Essential skill-building workshop over 2 days that will refine and increase your skills and mindset. Register Here
“I developed better knowledge, skills & judgment as a workplace investigator”
“Shifted my thinking”
“Tony presents in a realistic, practical and engaging way to help individuals understand clear principals of workplace investigations”
“The Workplace Investigations course is absolutely fabulous; it was very informative and has made me more confident in handling investigations from start to finish, on my own”