This article sets the foundations for conducting an investigation. In a series of articles over the coming months, we’ll explore the investigation process in more detail and provide our tips for a fair and defensible process.
When an allegation of misconduct is made, uncovering the truth can be a challenging task. Organisations may face anxious, distressed or defensive employees, a board or community demanding immediate action, or a workforce critical of moving too slowly. This pressure is compounded by the challenges associated with conducting a fair and reliable investigation, making factual findings, considering whether there has been a breach of law or policy, and determining how the organisation should respond.
Investigations conducted properly can instil trust and confidence and provide employers with a sound basis to effectively respond to misconduct. Where a process is flawed or procedurally unfair, courts and commissions are often scathing of the employer or investigator, leaving employers to defend an adverse action or unfair dismissal claim by the alleged perpetrator of the misconduct.
Given the risks associated with conducting a flawed investigation, employers should think carefully about whether an investigation is appropriate, and whether its people have the skills and experience to do it well. Investigations need not be perfect, but they should be fair and robust.
Is an investigation necessary?
Not all allegations of misconduct warrant an investigation. Investigations are not appropriate for trivial matters that will not lead to disciplinary action, even if the allegations are proven. Don’t rule out alternative dispute resolutions options such as mediation, counselling or coaching for interpersonal disputes that are unlikely to constitute bullying.
However, where allegations concern risks to health and safety, discrimination, harassment, bullying or criminal behaviour such as fraud, an investigation will often be required to ensure that standards of behaviour are maintained, risks are managed and legal obligations are met.
The following considerations will help to determine the best approach:
- What information is available?
- How serious are the allegations?
- If proven, would the alleged conduct breach employment obligations, policies or law?
- How significant are the risks to the individuals and the organisation?
- What options do your policies, procedures, contracts and industrial instruments provide for addressing the allegations?
- What the complainant is seeking? While you shouldn’t make any guarantees as to the outcome, this information may assist in determining the whether an investigation is appropriate.
- What’s your budget?
What type of investigation is appropriate?
If an investigation is appropriate, you’ll need to decide on the type of investigation. This will be determined by a range of factors such as time and cost constraints, whether there are issues of credibility, whether the matter would lead to disciplinary action, risks to the organisation, and whether you have sufficient information on the allegations.
An investigation could include:
- A preliminary inquiry to determine potential wrongdoing
- An investigation on the papers - where you are able to rely on documentary, visual or electronic records to make findings of fact
- Preliminary investigations with no findings of fact
- A full investigation with findings of fact about allegations on the balance of probabilities.
Who should investigate?
When you’ve determined the nature of the investigation, you then need to consider whether it should be conducted internally or externally and who should do it. We set out below some considerations for each option:
- Cost effective – utilising internal resources can be a pragmatic and cost effective solution to deal with concerns that have arisen within the workplace. An internal investigator may better understand the organisation, the internal procedures, and the staff involved or implicated in the incident. They may be able to provide a pragmatic approach to deal with the situation.
- Reputational damage – many workplace incidents can be exacerbated by the formality and disruption generated by a formal external investigation. Internal investigations can help the organisation contain the matter whilst under investigation. However, this is must be balanced with the need not to give the impression that the matter has not been taken seriously. In addition, the organisation may need to liaise with external parties conducting their own investigations such as the Police, ATO, WorkSafe and Fair Work Ombudsman.
- Efficient resolution – internal investigations may allow matters to be dealt with efficiently before they escalate. This approach may also send a positive message to the workforce that the organisation is being proactive in responding to concerns. However, organisations should carefully consider whether investigating a matter internally is appropriate for more serious or potentially litigious issues.
- Exposure to liability – conducting internal investigations may inadvertently expose an organisation to liability if the investigation is not handled correctly. Common issues include a failure to comply with procedural fairness requirements such as not allowing the individuals to have a support person present at meetings, or a failure to provide allegations which are capable of being responded to. Also, the investigation should follow a clear process and consider how the findings are communicated to employees. If the investigation is flawed, individuals may make a claim that they have been treated unfairly in their employment or that their health has been impacted.
- Actual or inadvertent bias – personal friendships within the workplace or a history of management of issues may cloud the judgement of those involved in an internal investigation. We encourage organisations to carefully consider whether those conducting the investigation can act impartially, or equally importantly, give the broader impression that they are impartial in their investigative processes.
- Impartiality – appointing an external investigator allows an organisation to demonstrate that the process is not tainted by bias or influence. Care should be taken when deciding who within the organisation will be involved in briefing and liaising with the investigator to avoid any suggestion that the process is unfair or biased.
- Confidence – engaging an expert external investigator may instil trust and confidence that the matter is being taken seriously. It also provides the opportunity for those involved or who have knowledge of the incident to participate honestly and openly safe in the knowledge that they are communicating with an external party and not someone who they will need to work alongside after the investigation is complete.
- Expertise – organisations should look to engage an external investigator experienced in their field to be a ‘safe pair of hands’ to manage a tricky situation. An external investigator should have the skills and expertise to conduct the investigation, and may have insight into how other organisations have successfully resolved similar issues.
- Lack of control – when you relinquish control over an investigation, there’s a risk that you might not agree with the findings or be dissatisfied with the way that it is conducted. If you’re convinced of the outcome, query whether you need an external investigation.
- Expense – external investigators do represent an additional cost to an organisation, however this must be considered against the cost to an organisation of having an employee act as an internal investigator in terms of absence from their usual role and loss of productivity. Also consider whether the short term expense of appointing an external investigator will mitigate long term costs caused by poor handling of an investigation internally such as claims made against the organisation.
How we can help
Moores regularly advises clients how to respond to misconduct and manage workplace investigation, and can assist with conducting investigations and appointing an investigator. This can be helpful when you want to assert legal professional privilege over an investigation report. We can also provide training and coaching for your human resources and senior management teams on how to investigate allegations in line with your organisation’s policies, procedures and values.
If you would like to discuss our services further, or have any questions in this space, please don’t hesitate to contact our Practice Leader Skye Rose or Senior Lawyer Sarah Adams on (03) 9843 2100 or by completing the form below.