Balance of Probabilities in Workplace Investigations

What is a workplace investigation?

A workplace investigation is a structured, impartial process designed to gather and analyse facts related to alleged misconduct in the workplace.

Before commencing a workplace investigation, it’s crucial to understand what defines a fair process and how to evaluate the information gathered using the civil standard of proof, the ‘balance of probabilities.’ This will ensure you can make well-founded and impartial decisions.

What is the balance of probabilities?

I asked my colleague this question and he said, “about a dollar fifty”.  While his bank balance may not be healthy, if he employs people, he should be aware that the cost of not understanding the balance of probabilities can cost a lot more than $1.50. 

If someone is accused of misconduct in the workplace, it is important for an employer to be comfortable that the conduct has taken place as alleged on the balance of probabilities.

Does that mean that the employer needs to be 51% sure that the conduct has taken place as alleged?  In short, No.

The level to which any misconduct needs to be proven will depend on several factors, one of which is what the potential consequences may be.  Where someone may lose their job, the potential consequences and impact on the person can be quite significant.  Therefore, the expected standard to prove the allegation has occurred is higher. 

When should you investigate?

The initiation of a workplace investigation typically starts with an allegation or complaint. Allegations or complaints may include anything from bullying and harassment to other matters such as inappropriate behaviour and conduct. When an allegation or complaint is made, a thorough investigation must be undertaken by the employer. This involves considering all the information provided by the complainant and respondent including any collaborative witness evidence, relevant documentation, e-mails, text messages etc. 

There may be several incidents to investigate, which form the foundation of the allegations. The more accurate information you gather, the better equipped you’ll be to make informed decisions about the most appropriate course of action.

Who should investigate?

You will need to assess whether the allegations are serious enough to justify an investigation and determine the appropriate type of investigation. At this stage, it’s important to refer to your organisation’s policies and procedures to guide your decision on whether the matter can be resolved informally, handled internally, or requires an external investigation.

Engaging an External HR Consultant

Bramwell Partners have the expertise and knowledge to investigate workplace misconduct, including matters that may result in termination.  By engaging an external consultant to conduct any investigation, an employer protects itself from any allegations of bias and can be confident that a fair and thorough investigation has taken place.