Workplace Investigations and Appeals
We provide external / independent workplace investigations and appeals.
We have been selected by the Office of Government Procurement to provide investigations, appeals and reviews related to disciplinary, dismissal, fraud, bullying and harassment and grievance.
We have provide investigations, appeals and reviews in many of the Government departments, civil service, state and semi-state bodies, universities, ETB’s, and so on. We have completed many investigations and appeals for corporates and SMEs.
Our team are qualified and trained to exacting standards. Our process is thorough but efficient and we can deliver results in accordance with the timelines of our client organisation. Our reports are concise and precise. Our process is legally robust. We are up-to-date on the latest legislation, codes and changing case law. Our style is human and empathetic while also being completely independent and external.
External Workplace Investigations and Appeals
Employment law and employment cases have become ever more complex, creating a minefield for employers. Where previously internal investigations and appeals were acceptable, and still are sometimes, there is a growing demand to outsource this work to external, independent parties, who are skilled in the area. In addition, external investigators can focus on the work in hand while internal investigators are trying to do their “day job” while also carrying out an investigation or an appeal. Furthermore, there will always be a sense of bias or unfairness among the minds of parties where they perceive an internal investigator to be biased in some way towards or against a party to the investigation or appeal.
Workplace investigations and appeals are complex procedurally. The latest High Court ruling in the Lyons v Longford Westmeath ETB case, highlights the huge complexity of issues involved, and the need for the investigators to be extremely competent in their work.
Having conducted and advised on many workplace investigations and appeals across the public sector, corporate sector and SME’s, we would advise caution and care in deciding on internal v external.
It is clear from case law in this area that the onus of conducting a proper and fair investigation and appeal falls on the employer or any external appointed investigator to ensure that the investigation is properly carried out.
Internal Investigations and Appeals
We are fully of the view that an internal investigation or appeal is oftentimes appropriate, expedient and cost-effective, and we are happy to advise on the process that must be followed by the people conducting the internal investigation or appeal.
Internal v External Investigation – Pros and Cons
There are pros and cons for using internal resources to conduct the investigation or appeal, and likewise, there are pros and cons for going external.
There is a cost factor with external which you don’t have with internal. However, busy managers and leaders may bring high value to the business by executing and delivering on their key objectives rather than being tied up in internal investigations or appeals.
The secondary downside of using internal resource is that the process may longer than an external third party as the busy manager is trying to get his/her ‘day job’ done as well as slotting this investigation into their busy schedule.
However, in going external, you want to be sure to choose a third party who will deliver quickly, and not let the process drag on for an unreasonable period of time.
The key benefit of an external party is their independence in the process. They should have no conflict of interest in conducting the investigation or appeal. The report of external investigators may carry greater weight in the WRC or in a court of law. There may be a perception, rightly or wrongly, that an internal investigation or appeal is biased or subjective in some way, and this may lead to further issues for the organisation.
A further factor is the separation of the roles in what may be a lengthy process. For example, if there has been in internal investigation into fraud, which led to a disciplinary process, which was conducted by internal parties, the outcome of which was dismissal and this was appealed. In this case, it would be best to have the appeal heard by an external independent person(s).
Establishing the investigation
Where an organisation has decided to conduct an external investigation, some of the steps in the process which should be followed when started an investigation are:
- Agree the Terms of Reference and provide it to the investigator and the parties
- Agree the precise details of what is to be investigated (e.g. obtain the actual dated and signed complaint in case of bullying or harassment, the exact issues in a grievance, or the specific issues in a fraud or disciplinary matter)
- Provide the investigator and the parties with the documents and information to date about the matter to be investigated
- Agree the policies of the organisation under which the investigation is being conducted and which apply to the case
It will most likely be necessary to interview parties e.g. the complainant, respondent and witnesses in cases of bullying or harassment, or the person(s) being investigated and other parties in a fraud or disciplinary case and, the person making a complaint and other parties in a grievance case.
Each party has the right to have representation present.
There should be a note-taker and an agreement that there is no other recording, or, an agreement that the meeting is being recorded, the recording will be provided to both parties and the notes of the meeting will be prepared from the recording.
The investigator should declare that they do not have a conflict of interest.
The investigator should inform the parties of the process to be followed. The parties should be given every opportunity to say their piece and to make submissions at the meeting or afterwards within an agreed and reasonable timeframe.
These are just some of the procedural matters which an investigator should ensure during an investigation or appeal process.
How Can We Help You?
We provide advice and guidance on the proper procedure for conducting Investigations, Hearings and Appeals or we can lead and conduct investigations, hearings and appeals where you may require external, independent, expertise. Click also on Disciplinary/Dismissal Procedures and Bullying Procedures for more information.
You can download our brochure here.
If you are an employer and have any questions about Investigations, Hearings or Appeals, please contact your CollierBroderick HR Advisor, call us on 01 8666426, contact us, or email us on enquiries@collierbroderick.
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