Almost all workplace investigations involve a breakdown in a relationship to some degree; whether that be an explosive end to a workplace romance or friendship, or a breakdown in professional and courteous communication between peers. The breakdown of a workplace romance presents unique challenges and provides fertile ground for workplace conflict. Investigating complaints arising from the breakdown of romantic relationships also present unique challenges and often requires a sensitive approach to investigate fairly and confidentially.
This article explores 10 practical tips for investigating complaints arising from the breakdown of romantic relationships.
Tip 1: Consider if there is a ‘connection to workplace’
- The threshold question to consider before proceeding with any workplace investigation is whether a nexus or connection to work exists. Investigators should turn their minds to whether the conduct is likely to cause serious damage to the relationship between the employer and the employee or to the employer’s interests, or whether the employer may be held liable for the employee’s conduct.
- For example, inappropriate text messages sent between the parties at times when at least one party was onsite, rostered to work or using a work mobile phone might be regarded as conduct that is sufficiently connected to work.
- By way of further example, in Applicant v Respondent[1], because the alleged sexual harassment occurred between two employees at accommodation paid for by the employer and the relevant workplace policy extended to such circumstances, it was found there was a sufficient nexus to work.
Tip 2: Know the difference between ‘Consensual’ and ‘Welcome’
- When it comes to sexual harassment complaints, a key threshold question to consider is whether the alleged conduct is consensual or reciprocated by both parties. The phrase ‘consensual’ is often used interchangeably with ‘welcome’. Whilst these two things can be concurrent, this is not always the case. A person who was previously in a consensual, personal relationship with another person may have grounds to complain that conduct became unwelcome at any point. For example, a person in a romantic relationship with a colleague may not consent to unwelcome physical touching or leering or staring from their romantic partner, despite their relationship being consensual. A person may also consent to a colleague filming or taking intimate photos, however, the distribution of these images to a third party may be unwelcome.
Tip 3: Consider the appropriateness of the support person
- It is not uncommon for interviewees to select someone who is in their close circle to attend the interview as their support person. This can become an issue if the selected person is a romantic partner of the complainant or respondent, because it may make the interviewee feel uncomfortable about providing information. You can pre-emptively manage this by requesting that interviewees disclose the name and their relationship to their support person prior to interview.
Tip 4: Be prepared for process-related questions and reluctance
- Be prepared to answer questions from interviewees about the investigation process including what protections are available to them in terms of their reputation and confidentiality, as well as how their evidence will be used. It can be helpful to reassure interviewees that all participants are required to keep the investigation confidential, and they should inform their employer if they are concerned about any breach of confidentiality or retaliatory conduct.
- If a complainant is reluctant to provide evidence in support (e.g. private text messages or documents), sensitively caution them that this could make it difficult to make a finding about the concerns they have raised.
Tip 5: Be prepared for emotions and historical information
- Be prepared for complex relationship dynamics and emotions to surface in interviews (which may also affect interviewees’ level of recall). This is not necessarily any indication of their credibility.
- Complainants may, on reflection, be offended or humiliated about past conduct (including their own). This may result in the conflation of their current emotional state and past experiences, or the raising of out-of-scope historical concerns. Know the key timeframes and where to focus questions.
- To best manage emotional interviewees, allow additional interviewing time and employ trauma-informed interviewing techniques (See our article on Trauma-informed interviewing techniques).
Tip 6: Establish a timeline of events
- Establish a timeline of events, noting when the relevant relationship commenced and ended or changed, as soon as you become aware of any pre-existing or former relationship.
- Review supporting documents and any publicly available information (even prior to the complainant interview), including:
- Public social media profiles – to locate any information about personal relationship statuses.
- Text messages (work and private phone) – request from both the complainant and respondent as soon as possible and crosscheck their records.
- Ask both parties if (and when) they blocked each other’s phone numbers or social media.
- Note: Be aware of parameters in the employer’s digital media and communication policies (including phone, email, Teams, social media etc), before accessing, assessing or relying on the above information.
Tip 7: Consider motivations and catalysts
- Maintain a healthy level of suspicion about the catalyst for the complaint. Do not be afraid to test the motivations of a complainant in bringing a complaint or a respondent in defending the allegations. Consider posing questions such as“can you help me understand what has triggered the change in your feelings towards the other party / your complaint”.
Tip 8: Take a cautious approach to covert surveillance
- Covert surveillance (such as recordings, videos, personal photos etc) is a common evidentiary obstacle. Be sure to thoroughly check applicable policies and seek external advice if required about how such evidence should be treated. If possible, clarify this before receiving or viewing covert surveillance.
Tip 9: Be alive to potential criminal conduct
- Due to the often serious allegations in these types of matters, there can be overlap with potential criminal conduct. This needs to be managed carefully by having clear expectations around policies and limitations on the gathering/storage/use/destruction of evidence, to ensure that any current or pending police enquiries are not inadvertently impeded. Consider seeking external legal advice about reporting obligations in the event you have a reasonable suspicion that a party has engaged in criminal conduct.
Tip 10: Be open to uncovering breaches or misconduct other than sexual harassment
- While sexual harassment complaints are common following the breakdown of close, personal relationships in the workplace, quite often other inappropriate behaviours can emerge as the investigation progresses. For example, failure to declare or manage a conflict of interest, breaches of contractual confidential information obligations, retaliation, bullying, or more general harassment behaviours, such as stalking.
- Whilst Investigators should be mindful of ‘scope creep’ or unfairly subjecting respondents to a kitchen-sink type approach, Investigators may identify less serious or less obvious breaches, such as breaches of IT, social media or communications policies. Secondary allegations of this nature are tested against different thresholds and policy-based tests, which do not include subjective tests such as whether the conduct was unwelcome.
Key takeaways
- Consider the threshold question of ‘is there a sufficient connection or nexus to work?’.
- ‘Consensual’ does not always equate to ‘welcome’.
- Consider and manage the appropriateness of support persons.
- Be prepared for process-related questions and reluctance from interviewees.
- Be prepared for emotions and historical information to surface in interviews.
- Consider motivations and catalysts on both sides (respondent and complainant).
- Establish a timeline of the relationship as soon as possible.
- Be cautious when accessing, modifying or deleting covert surveillance.
- Be careful not to impede police enquiries into related criminal conduct.
- Be open to uncovering breaches or misconduct other than sexual harassment.
If you would like to learn more about workplace investigations and trauma-informed techniques, QWorkplace Training regularly runs public online workshops on Conducting Effective Investigations and Sexual Harassment Investigations.
[1](1999) AIRC 1524.
