04 Feb 2021

Workplace investigations refresher 01: Where to begin

By Jennifer Wyborn, Charisse Matthews, Caroline Beasley, and Ali McMaster

Some of the key do's and don’ts employers should keep in mind during the entire investigation process will assist you to spot these issues early, and plan accordingly.

Conducting a proper workplace investigation is not always a straightforward or easy process, and getting started can often be the hardest part. However, planning ahead, assessing your risks, and thinking your investigation through from the get go is one of the best ways to simplify this process, and avoid many of the common pitfalls that can derail an investigation once it is underway.

This workplace investigations refresher series is here to assist you to navigate this at times tricky area, and achieve a successful workplace investigation that appropriately manages risks to your workers and your business.

Over the coming weeks we'll be covering a range of topics as part of this series, from how to ensure procedural fairness, to utilising legal privilege during the process, and everything in between.

Getting started – Choosing whether to engage an internal or external investigator

When you have decided something that has happened in your business needs to be investigated, one of the first decisions you'll be faced with is considering who should conduct this investigation.

The question of whether to engage an internal or external investigator can turn on a range of factors, including:

  • the complexity of the matter;
  • whether the investigation needs to be covered by legal professional privilege;
  • the seriousness of the alleged conduct;
  • the relative seniority of the employee(s) involved;
  • the proximity of the potential investigator to the person(s) involved; and
  • the nature of the employer's business, including its resources and ability to investigate the matter itself.

Depending on these factors, engaging an external investigator may be the better option, as it can assist in ensuring an impartial, unbiased, and procedurally fair investigation. An external investigator can add credibility and objectivity to an investigation. It may also be appropriate where the investigation gives rise to complex issues that require specific skills or qualifications to consider, for example legal qualifications. However, engaging an external investigator can be expensive. Further, even if you engage an independent external investigator, you need to ensure that you respect their independence, and do not attempt to influence the outcome or findings of their investigation.

Engaging an in-house investigator with knowledge of your organisation's operations is often a less expensive and more efficient option, and may be the better route where the matter is simple and straightforward. However, this comes with the risk of being, or being seen to be, less impartial or objective, which can increase the risk of procedural fairness issues emerging down the line.

It is also not always clear cut at the start of an investigation how the process will play out, and employers may need to change course halfway through an investigation to ensure procedural fairness and minimise risk. For example, in the case of Foley v Melbourne Health [2015] FWC 4821, Melbourne Health initially commenced an internal investigation, however after Mr Foley (a security guard employed by Melbourne Health) raised concerns about the internal investigation, Melbourne Health appointed an external investigator. This helped to ensure the integrity of the investigation when Mr Foley brought an unfair dismissal application. Mr Foley's unfair dismissal application related to his termination following an investigation into an alleged physical confrontation between him and another employee.

Mr Foley made a number of allegations, including that the investigation was biased, that he was not at fault, that the investigation did not occur in a timely manner, and that the outcome was not fair. In response, Melbourne Health submitted that Mr Foley received all relevant material, was provided with an opportunity to respond to the allegations (which he did), and that the investigations were thorough and pursued in a careful and considered manner. Ultimately, the Fair Work Commission (FWC) determined that Mr Foley had not established that termination of his employment was harsh, unjust or unreasonable, and dismissed the application.

This case demonstrates that employers should make sure that notwithstanding the need for a timely investigation, the investigation is thorough and considered, and that the employee is afforded procedural fairness at every stage. This may include forming a view about whether to appoint an external investigation up front. Making sure these steps are followed and a proper investigation is conducted means that an employer is more likely to be in a strong position to defend against any claims against any disciplinary action it chooses to take.

Forging ahead – Other key considerations and takeaways when conducting an investigation

This list is covers off on some of the key do's and don’ts employers should keep in mind during the entire investigation process; it's good to be aware of these issues from the start. This will assist you to spot these issues early, and plan accordingly.


DO

  • follow a clear structure which ensures procedural fairness is afforded at all stages of the investigation;
  • consider if an investigation is required, or whether an alternative action (like an informal management discussion), is more appropriate;
  • consider and follow all relevant internal policies and legislation;
  • ensure the investigation is thorough, fair and impartial;
  • select the appropriate investigator for the circumstances (interval vs external; lawyer, non-lawyer, etc);  
  • consider all evidence thoroughly, and that the employee under investigation is given the opportunity to respond to evidence that is credible, relevant and significant;
  • conduct the investigation in a timely way;
  • ensure there is sufficient evidence to justify findings and make it clear where facts cannot be substantiated;
  • consider whether the employee should be suspended during the investigation or business assets (eg. phone/laptop etc)  taken off them;
  • consider whether there is a risk the employee may interfere with evidence or intimidate witnesses, and take steps to mitigate against this;
  • ensure there are clear terms of reference and the investigator knows what you would like them to do, (eg. facts, breach, recommendations, etc);
  • record interviews where possible, ensuring it complies with relevant legislation, after seeking witnesses' consent and offer a copy of any transcript and/or audio to the witness, as required.

DON'T

  • waive legal professional privilege
  • fail to afford procedural fairness
  • instigate a workplace investigation if it is not necessary as it will be time consuming, emotional and disruptive;
  • fail to investigate key evidence before making a finding;
  • forget to give each party the opportunity to respond to any contradictory evidence;
  • fail to follow policy or relevant legislation;
  • drag out the investigation, as memories fade, witnesses may leave and it is unfair to the respondent;
  • take disciplinary action where you have not established the misconduct has occurred.

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Disclaimer

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.