Leading from the top – investigating serious or criminal allegations in the workplace

The latest sexual assault allegations to consume Australia’s parliament have led many employers to consider how they would respond to serious or criminal allegations against their workers, particularly those in senior leadership.

When an employer becomes aware of criminal allegations against a worker such as theft, fraud, stalking, sexual assault, illegal drug use, child safety related offences (e.g. grooming) or driving offences, it should carefully consider its response in line with its values, commitment to maintaining a safe working environment, culture, and reporting and employment obligations.

The Child Safety and Workplace Relations teams at Moores act as trusted advisors to employers in times of crisis. In this article, we set out our top tips for responding to serious or criminal allegations.

Ensure the safety and wellbeing of the alleged victim / informant

Once the employer is aware of a serious allegation, the first priority should always be the health and safety of those concerned, particularly the alleged victim or informant.

An employer may need to separate colleagues or clients to minimise the risk of physical or mental harm. That may involve reassigning employees, changing their reporting lines or temporarily standing them down from work. Preliminary legal advice should be obtained to ensure that staff are treated fairly and appropriately, in line with organisational policies and relevant legal obligations.

Organisations will often appoint the Head of HR or a senior business leader to be the primary contact for the alleged victim and/or informant. This person typically plays a “welfare officer” role.

A “welfare officer” needs to take an empathetic approach and have the necessary organisational authority to ensure the health and wellbeing of the people closest to the incident. For example, the welfare officer would need to be able to discretely speak with relevant managers to arrange time-off, alternative duties or new reporting lines for people closest to the incident. The welfare officer would also need to be competent to advise people of their rights and obligations in relation to non-victimisation.

The welfare officer may need to discuss with internal stakeholders whether the respondent (i.e. the person against whom the allegations are made) should be removed from the workplace immediately, or stood down from duties pending an investigation. These discussions are often challenging. Whilst the presumption of innocence is important, an employer also needs to balance that against the health and safety risks based on the information it has available.

Coordinate your response

Subject to the size of the organisation, it may be appropriate for the employer to appoint a Committee responsible for coordinating its response to the concerns. This Committee typically makes strategic decisions, receives legal advice and liaises with external authorities. It is usually comprised of two to three people (including a welfare officer); anything more than five can become unwieldy.

The Committee should obtain early legal advice to deal with issues such as preserving evidence and the scope of the investigation. It should also be responsible for safeguarding privilege over legal advice. To preserve legal professional privilege in an organisation, its confidentiality must be maintained. Circulating legal advice outside of a core “need to know” group may inadvertently waive legal professional privilege attached to that advice, which could result in the organisation being compelled to disclose privileged materials to regulators or litigants.

Collect and preserve evidence

Employers should prioritise the collection and preservation of evidence. Where there is the prospect of criminal proceedings, the means by which evidence is gathered may be of crucial importance.

A careful and lawful process needs to be undertaken to ensure the integrity of all evidence obtained. This will generally involve:

  • suspending a respondent’s access to emails or IT systems, and potentially their physical access to the premises (so as to prevent the destruction of records or documents);
  • taking custody of original documents and portable electronic devices (such as a work issued GPS, laptop, iPad, or mobile phone);
  • taking photographs and/or videos as necessary; and
  • keeping careful records of witness evidence.

Where electronic evidence is involved, a forensic technology expert may be required to create a verifiable backup or mirror image of the computer system.

Employers should carefully consider their rights and responsibilities under employment contracts, policies and industrial instruments before taking steps to suspend access or recover property.

Consider whether regulators should be notified

Regulators and funders usually appreciate prompt notifications about concerns.

Depending on the incident and the employer’s sector, a serious incident may trigger reporting obligations. These obligations can be triggered even if the organisation does not have all the relevant facts, and the organisation is still investigating the allegations.

Some occupations, such as those in the medical and education sectors, have specific reporting requirements, particularly for issues such as suspected child abuse.

By way of example, some of the key mandatory reporting requirements in Victoria are summarised below.

Who does the obligation apply to?What to notify and who to notify?When to notify?Possible implications of failing to notify
All workplaces covered by the Occupational Health and Safety Act 2004 (Vic) (OHS Act)Notify WorkSafe Victoria of any incident that has occurred at the workplace (under the management and control of the employer or self-employed person).Immediately after becoming aware that the incident has occurred.Being found guilty of an offence under the OHS Act and liable to a fine of up to 240 penalty units (approximately $40,000) for natural persons or 1,200 penalty units (approximately $200,000) for body corporates
Certain professionals in Victoria, such as principals, medical practitioners, and nurses[1]Notify Child Protection (part of Department of Health and Human Services in Victoria) if they believe on reasonable grounds that a child has suffered or is likely to suffer significant harm as a result of physical injury or sexual abuse.[2]As soon as practicable after forming that belief.The penalty for failing to make a mandatory report is 10 penalty units (approximately $1,650).
All persons in Victoria of or over the age of 18 yearsNotify Victoria Police if one reasonably believes that a sexual offence has been committed in Victoria against a child under the age of 16 years by another person of or over the age of 18 years, e.g. discovering child pornography.As soon as it is practicable to provide that information.Up to three years’ imprisonment.
Victorian NDIS providerNotify the NDIS Quality and Safeguards Commission and/or the Victorian Disability Worker Commission if there is an allegation or reasonable belief that a disabled person has been abused (including sexual abuse). A Victorian NDIS Provider must review the reportable incident  provisions under the NDIS legislation,[3] and the notifiable conduct rules under the Victorian legislation.[4] They apply concurrently, and though they are similar, they are not the same.As soon as practicable after forming the reasonable belief or the allegation is raised.Notifying the Victorian Disability Worker Commission in good faith provides protection from civil and administrative liability. Failure to notify the Commission will not afford you this protection.   Failure to notify the NDIS can put the provider’s registration as a NDIS provider at risk.
All agencies and organisations covered by the Privacy Act 1988 (Cth)Once the threshold for an “eligible data breach” is established, notify the Office of the Australian Information Commissioner and each individual to whom the information relates.  An eligible data breach will occur when there are reasonable grounds to believe that personal information has been accessed or disclosed without authorisation, or has been lost AND the breach is likely to result in serious harm  to the individual whose privacy was breached/whose data was lost.Noting that you have 30 days to investigate, should your investigation result in a finding that the breach is “eligible”, as soon as practicable after the entity becomes aware of the eligible data breach.If the Commissioner is aware that there are reasonable grounds to believe that there has been an eligible data breach, the agency or organisation may be directed to make the report to the Commissioner. The Commissioner also have powers to investigate, invite parties to participate in a conciliation and make orders including civil penalties.

In New South Wales, adults who know or believe that a serious indictable offence has been committed by another person are required to notify the NSW Police Force or other appropriate authority of any information which might be of material assistance to them in securing the apprehension of the offender or the prosecution or conviction of the offender for that offence.[5]

We may see more mandatory reporting laws coming into place. The Victorian Government is considering reforms that would require employers to notify WorkSafe of incidents of sexual harassment.

Employers may be concerned about the risk of defaming individuals by reporting a concern to a regulator. However, the common law principle of qualified privilege protects people from defamation action when they make mandatory disclosures to a statutory authority in good faith.

Hasten slowly with the investigation

An employer may be required to undertake an investigation before any employment action is taken. For example, a School or an accredited NDIS provider is required to promptly investigate notifiable incidents. If the Police or other regulators are investigating, then the employer will need to consult with those authorities prior to commencing its investigation, so that the employer does not interfere with those regulatory investigations.

Rarely, if ever, should serious or criminal concerns (including concerns of sexual harassment) be investigated internally. Independence and objectivity will help to ensure that there is trust and confidence in an organisation’s response to the concerns.

When it comes to investigations there is no one-size fits all solution. The appropriate course of action will depend on various factors, including the employer’s sector, its size, its risk profile and the seriousness of the allegations.

How Moores can help

Moores has extensive experience in managing and advising on complex regulatory investigations, including in relation to child abuse, fraud, sexual harassment and criminal conduct. If you need a trusted advisor to support you through this process, please do not hesitate to contact us.

Note: This article contains general information only.  It is not legal advice and should not be relied upon as such. You should always obtain legal advice based on your needs and circumstances before taking action on the matters referred to in this article. 

[1] See the Department of Health and Human Services’ mandatory reporting webpage for a full list of mandatory reporters.
[2] In Victoria, reporting to DHHS is due to be transferred to the Department of Families, Fairness and Housing, which will be the new government body for child safety matters.
[3] Reportable incidents include the death, serious injury, abuse and sexual misconduct of a person with a disability. See National Disability Insurance Scheme Act 2013 (Cth) s 73Z.
[4] Notifiable conduct includes practising while intoxicated by alcohol or drugs, engaging in sexual misconduct and placing, or being at risk of placing, the public at risk of harm. See Disability Service Safeguards Act 2018 (Vic).
[5] Crimes Act 1900 (NSW) s 316.