They did what? Investigations in the workplace

By Lori Middlehurst

A version of this article was first published: www.ethics.org.au - February 2012

As a junior lawyer I was sent to a client site to review documents, boxes and boxes of documents. Our client was a government contractor and they were accused of providing false test results to the government on the efficacy of a machine they were making for the government. Several days into the mind-numbing review of engineering reports and memos I found one that referenced a computer program called FAKIT. As the name suggested, this program generated test results that were fake. Game over, time to fire employees and settle with the government, right?

Certainly damning evidence, but fortunately the inquiry didn't stop there. When I interviewed the engineers, I learned that they had real concerns about the tests the government had ordered. They did not feel that the tests actually measured results that were critical for safety and efficiency. The government tests were difficult to run and produced misleading results. The engineers had devised FAKIT to give the government the results in the format they wanted, but were actually running real tests that showed that the machine was safe and effective. The engineers weren't trying to pull a fast one on the government; they worked long hours to build a machine that actually exceeded the requirements, but they felt the test was stupid and misleading. There was evidence that they had tried to raise their concerns to management but repeatedly hit dead ends so they were doing what they genuinely felt was best for both the company and the government.

The real problem at the company was not unethical behaviour. It was communication or lack thereof. The company lacked avenues for communication between their technical staff, management and the company negotiators who had agreed to the tests in the first place. The means the engineers used were not appropriate and, while it might not have been unethical, they did engage in fraud that could not be condoned. But the client did not want to fire the engineers. Instead the company put communications channels in place, the engineers kept their jobs and (after some negotiation) the relationship with the government was saved.

After hundreds of employee investigations, I've been involved in the resolution of countless investigations that did not turn out the way I might have envisaged when I first heard the allegation. In some cases there was a perfectly reasonable but unexpected, explanation. In other cases the initial matter being investigated was just the tip of the iceberg. Proving the misconduct is only part of the task at hand.

First of all, no matter how clear cut the evidence may seem, the one piece of evidence that must always be considered is the explanation of the accused. Consider the situation where an IT administrator finds copyrighted material is being downloaded to a company computer. It is easy to determine whose equipment is involved, and so it may seem that no investigation is needed. But when we talk to the accused we may learn that employee was on leave and gave her boss system access and he downloaded porn to harass her. Perhaps the employee had his computer hacked by his teenage son, who accessed an illegal underground music site known only to tattooed 19 year olds. Maybe the download was at the express direction of the employee’s manager who needed the software for a work project. The same violation but the remedy or discipline and even the person disciplined might be quite different based on the explanation of the accused. Sometimes the explanation provided by the accused is an admission. I once had a manager admit to taking his pants off in an interview because he was hot. Other times the creativity of the accused may demonstrate a complete failure by the employee to grasp the seriousness of the misconduct. A superior once explained that taking his staff to a team building event in a transvestite strip bar was no different than taking them to a Dame Edna concert (no possum, the Dame has never performed in a g-string and pasties).

Second, the investigation needs to be broad enough to discover the breadth of the wrongdoing. I worked on an investigation where an employee was brazenly opening purchase orders to his own consulting company. While that would have been enough to terminate him (despite his sincere explanation that he was actually providing consulting services to the company in the evening and at the weekend), the forensic examiner dug deeper and found that this talented employee had actually created a parallel expense reimbursement system to that of the company and had effectively expensed the remodel of a four bedroom home. The extent of his creativity was such that the local prosecutor was intrigued enough to take the case and then able to extract a plea bargain that resulted in the company owning most of his ill gotten gain including a brand new BMW. As a result, without having to bring a costly civil claim, the company recovered a much larger percentage of the loss and the employee went to jail for three years.

Third, the investigation needs to get at the root cause of the misconduct. Sometimes people are just behaving badly, but in other cases the root problem may be a lack of communication, poor leadership or cultural or language differences. Once an employee in an Asian location claimed her new ex pat manager continually used inappropriate language which upset and offended her. The employee’s first language was not English, she was very reluctant to repeat what she thought he was saying but finally disclosed that he was making remarks about a female condition that men in her culture did not speak about with women. It turned out that the American manager tended to punctuate his sentences by saying the word “period” while English speakers in her jurisdiction used “full stop,” and it was simply a usage she had never heard before. Here the alleged harassment was nothing more than a cross cultural miscommunication. While it was fairly simple to resolve the claim, the matter illustrated the need for the company to do a better job of providing cross cultural training to transferring employees.

Finally, it is sometimes forgotten that in every investigation all of the parties and the witnesses need to be left with a positive impression of the process. Even where their guilt is easily shown, the investigation must be fair and impartial. The investigators must treat each of the witnesses professionally and maintain as much confidentiality as possible. If a witness becomes upset or needs to take a break, they need to be afforded that courtesy. If the only meeting rooms in an office have glass walls or are near the lunchroom, copier, toilets or reception area, then the interviews need to take place offsite. The investigation needs to be resolved in a reasonable time to minimize the disruption and rumour mill. It is not fair to keep either the accused or the accuser waiting for a resolution, and dragging out an investigation can result in one or both taking stress leave which can further delay the resolution of the matter. Investigations require a modicum of lateral thinking but I’ve seen enthusiastic investigators take this a bit far. Every investigation must be brought to a conclusion in a timely fashion so there is sometimes a trade off between turning over every stone, and boiling the ocean.

No company sets out to discipline or terminate employees unfairly. It's a waste of time and money and simply the wrong thing to do. However, the myriad of successful cases brought by impacted employees is evidence that investigations are not always fair and complete. Also, a poorly conducted investigation can result in disruption to the workplace, employee relations issues, poor employee engagement, employee turnover, reduced productivity, increased conflict, and more matters that require investigation. In many jurisdictions, being able to point to a clear, unbiased well established investigatory process and procedure can help the company establish defenses in legal claims against it or its managers and demonstrate its compliance with anti-discrimination, anti-trust and anti-corrupt practices laws.