Workplace investigations refresher part 8: Participants in workplace investigations – witnesses

By Jennifer Wyborn, Caroline Beasley, and Ali McMaster
16 Sep 2021
A carefully planned approach will ensure an investigator balances competing interests while finding the facts required.

Related Knowledge

In our last workplace investigations refresher, we looked at what an employer's obligations are in relation to putting allegations to a respondent. In this article, we take a closer look at how an investigator can manage witnesses in an investigation, as well as identifying some key steps investigators can take to protect the interests of all parties at the same time as obtaining the evidence they need.  

Who's who: Identifying your witnesses

Once you have identified witnesses who may be able to provide information about the facts underpinning the allegations in your workplace investigation, the planning begins. In order to get the most useful information from any witness, prior planning is key. Below we set out some key considerations in planning the approach to a witness interview, which is our preferred approach to obtaining witness evidence rather than requesting written statements.

Planning the approach

Where will the interview be held?

If possible, plan to conduct witness interviews in person and away from the workplace. If the interview must be conducted at the workplace, choose a location where other employees are unlikely to see the witness attending for the interview. If in person meetings are not practical, video conference is preferable to phone because of the added visual component.

Arranging the interview

As we have explored in previous articles, confidentiality is important in any workplace investigation. It also impacts the way an investigator plans their approach to interacting with witnesses. For example, invitations for witnesses to attend an interview should be made confidentially. It may be important to consider whether another person may be able to access the inbox or calendar of the witness. Further, all correspondence to witnesses from the investigator should be marked private and confidential.

How much information needs to be provided to each witness?

In order to preserve confidentiality over parts of the investigation the witness does not need to know about, care should be taken in relation to how much information you provide to witnesses about the allegations. A good rule of thumb is that witnesses should not be given more information than they need to know for the purposes of their evidence. Some legislative schemes under which investigations are conducted are prescriptive about confidentiality of particular information to do with an investigation. For example, if the interview is occurring as part of an investigation under the Public Interest Disclosure Act 2013 (Cth) (PID Act), the extent of the information shared with the witness about the allegations should be carefully considered, to ensure that the identity of the discloser is not revealed.

Conducting the interview

It is also important to plan the questions and approach to the interview ahead of time. This could include a rough script of what you intend to ask the witness and any documents you wish to show them. In order to obtain rich interview content, and to remain impartial, we recommend asking open questions instead of closed ones, and avoiding ascribing labels to information provided by a witness such as agreement. An investigator can still show empathy towards a witness, however it is important to remember that the role of an investigator is an impartial one.

Although it is very helpful to prepare the types of questions that may be asked in an interview ahead of time, it is still key for an investigator to be able to think on their feet during an interview to ensure that they have the appropriate level of information to make findings later on. This is particularly true of cases where more serious sanctions may be considered if the conduct is found to have occurred, such as termination of employment, which might be able to be challenged by the employee in the Fair Work Commission. For example, ensuring you obtain evidence from witnesses about particular details relevant to the conduct in question, rather than assuming a particular meaning, can be important in this regard. Drilling down into detail can be the difference between the success or failure of an investigation's findings if they are reviewed by an external body as part of a claim by the employee.

Informing the witness about the process

It may be appropriate to provide witnesses with information about the process of the investigation. Alternatively, the framework you are utlilising for your investigation may prescribe particular information to be communicated to participants. For example, the PID Act contains particular information which needs to be communicated during interviews. If your interview is in this category, we recommend preparing wording for this in advance. Witnesses who have not been involved in these processes before are likely to have questions, so it can help to be prepared to answer them.

As touched on in our previous article, before they are interviewed, witnesses should be made aware that every effort will be made to protect their identity and confidentiality in the investigation. However, despite this, sometimes the nature of the allegations or facts in dispute may mean the witness' identity, along with what they have said, becomes apparent to the respondent. This is because the principle of procedural fairness requires that the respondent be provided with adverse information which is credible, relevant and significant, in order for them to respond to the allegations. In order for the investigation to provide procedural fairness to the respondent, the witness' identity may be reverse engineered by the respondent, based on the information that is put to them.

Employers who are subject to the Privacy Act 1988 (Cth) need to ensure the handling of witness information is managed in accordance with their privacy policy and the Privacy Act. As part of this, it may be worth making copies of a privacy policy available to witnesses as part of the investigation.

What if a witness does not want to participate?

Once you have planned your witness interview, what should you do if a witness is hostile or does not wish to participate? This can be a difficult issue, and the answer will depend on the particular circumstances and framework that the investigation is being conducted under. For example, if you are conducting an investigation under the PID Act, and your witness is a "public official" as defined in that Act, they have an obligation to use their "best endeavours" to assist in an investigation (see section 61). A failure to do so may breach of the PID Act.

If the investigation framework does not include an obligation such as this, depending on the circumstances, it may be open to an employer to issue a lawful and reasonable direction to an employee to assist with the investigation. A failure to comply with a lawful and reasonable direction can result in disciplinary action, which may encourage the prospective witness to cooperate. However, whether this course is open to an employer will always depend on the circumstances, and we recommend employers seek legal advice before issuing a direction if they are in doubt.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.