Tips and tricks for the festive season and investigating employee missteps

The first office festive season in three years is upon us.

Over the last few years, social interactions within workplaces have been limited.  But that is all behind us with the ease of pandemic related restrictions, social events are back in vogue. Clients are being entertained, and workplaces are getting together to celebrate the year that was.

Below are our key tips and tricks for the festive season that all marketing teams, business development managers and office social committees should have front of mind when organising festive season functions.

Then, for when things go wrong, we have included our key tips to handle any complaints received.

Festive season tips and tricks

For the festive-season-employer-host, end of year functions are meant to be fun filled, a chance for guests to let their hair down, swap stories and create memories in a somewhat less formal environment than the office break out area provides.

It is important, though, to remember that such events are an extension of the workplace, and with that carry workplace obligations for both employer and employee.

To reduce the risks of festivities taking a sour turn, organisers should implement the following strategies to ensure a safe social situation – as the old adage goes ‘fail to plan, plan to fail’.

1. Ensure that appropriate policies and procedures are in place addressing appropriate workplace behaviour, particularly in relation to the use of social media.
2. Set clear start and finish times for the event, ensure that appropriate security and safety measures are in place. Importantly, external venues should be safe and appropriate for the type and size of function planned.
3. Prior to the function, remind employees that the event is a work function and to exhibit professional, appropriate behaviour, ensuring that employees are aware of any applicable policies or procedures addressing workplace behaviour.
4. If alcohol is being served, ensure the responsible service of alcohol and that plenty of food is available.
5. If the function is held outside of ordinary work hours, provide appropriate transport home for employees, such as cab charges.
6. If there is a theme, ensure that the theme is appropriate, and is not potentially offensive to certain groups of people. Additionally, it is sensible for an employer to be clear about dress code expectations prior to the function, perhaps providing examples of the ‘dos and don’ts’.

Investigating employee missteps

Following a workplace function an employer may receive an employee complaint. For example, where an employee may have overstepped and there is an allegation that they have engaged in inappropriate conduct towards another employee.

As a first step, when an employer receives such a complaint, the recipient should carefully consider whether there are any employer policies in place that dictate how they are to deal with the complaint, and determine next steps to resolve the matter, which may or may not include conducting a workplace investigation – does any further information need to be gathered, and if so, what?

Often an investigation may not be required or appropriate in the circumstances, and if commenced may act to broaden and escalate the issues unnecessarily.

Arranging a simple conversation between the parties to talk through their different positions and come to an amicable resolution is often more appropriate than commencing a formal process which may work to harden positions and make it more difficult for relationships to continue following resolution of any complaints process.

For example, matters amounting to nothing more than disagreements between individuals, or personality clashes, are best resolved as informally as possible.

More serious allegations, however, may require a more formal process.

Investigations can be conducted internally, or an employer may choose to engage an external party to investigate the matter – such as a law firm with employment law specialists.

Internal investigations can be useful when further information needs to be gathered, because, done well, they can be quick and cost effective for the employer.

Although, internal investigations may not be appropriate where more serious allegations have been raised (eg. sexual harassment allegations), or where the perception exists that those dealing with the matter internally are unable to bring an objective mind to addressing the issues raised (eg. a decision maker is a subject of the complaint), or where the nature of the allegations requires a more forensic analysis (eg. alleged fraud or misappropriation of funds).

Legal professional privilege may also be able to be established where an external investigation is conducted by an external law firm, which may be useful to an employer in some circumstances. For example, where an employer sees value in the opportunity to get ahead of any sensitive issues, or to better manage potential reputational risk.

Where it is decided an investigation is necessary, whether it be conducted internally, or an external party is to be engaged, it is important that employers commence the investigation as soon as practicable, keep the complainant informed about the steps that the employer is taking to deal with the complaint, maintain confidentiality, and provide any respondents with an opportunity to respond to any allegations, prior to concluding the investigation, which should be concluded in a timely manner.

Below is our summary guide of key things to consider for employers conducting a workplace investigation.

1. Consider and comply with any applicable policies and procedures.
2. Establish exactly what has been alleged by the complainant and against whom, and clarify what the complainant is seeking from the process.
3. Determine whether any immediate action is required, such as suspending employees or collecting evidence before it can be tampered with.
4. Determine who will investigate the facts, who will determine the outcome and how will the decision maker be notified of the outcome.
5. Identify any relevant witnesses and who should be interviewed concerning the complaint.
6. Collate and review any relevant evidentiary documents, and conduct interviews with the complainant, any relevant witnesses and then the respondent.
7. Emphasise that the matter is confidential and is not to be talked about with other employees, and to do so may result in disciplinary action.
8. Prepare a report setting out the findings indicating whether allegations are substantiated or not substantiated on the ‘balance of probabilities’ and make recommendations to the appropriate decision maker.
9. Where a report substantiates allegations raised, a decision should be made as to appropriate disciplinary action.

If you require any advice in relation to workplace investigations or grievance/complaints procedures, our Employment, Workplace Relations and Safety group at McCabes Lawyers can assist.