A good workplace investigation should be efficient, fair and effective. A bad workplace investigation can be damaging to those involved and expose an organisation to significant liability. By following investigation best practice and complying with applicable laws, employers can effectively deploy workplace investigations while mitigating legal risks and fostering a positive work environment. This article discusses these considerations and provides some tips, tricks and pitfalls for employers in conducting workplace investigations.
Legislative framework
Navigating and complying with the legislative landscape is essential to avoid creating liability during an investigation. Such liability includes unfair dismissal claims, general protection applications, discrimination claims, breach of privacy claims, and workers compensation claims. The legislative framework relevantly includes:
- Commonwealth: Fair Work Act 2009 (Cth), Corporations Act 2001 (Cth), and Privacy Act 1988 (Cth)
- Work health and safety legislation: e.g. the Occupational Health and Safety Act 2004 (Vic) or Work Health and Safety Act 2011 (Qld)
- Anti-discrimination legislation: including the Sex Discrimination Act 1984 (Cth) and Racial Discrimination Act (Cth) and state based legislation such as the Equal Opportunity Act 2010 (Vic) and Anti-discrimination Act 1991 (Qld).
Threshold questions: do you need to investigate and legal professional privilege
1. Do you need to investigate?
- Not every matter requires an investigation. Unnecessary investigations can waste time and resources and may harm participants.
- If the facts are clear or there is no question of misconduct or liability, an investigation might not be needed.
2. Should the investigation be under legal professional privilege?
- Before starting an investigation, decide if it should be conducted under legal professional privilege.
- Legal professional privilege protects investigation materials and reports from being disclosed in litigation or to regulators.
- This privilege is available if the main purpose of the investigation is to obtain or provide legal advice or in anticipation of litigation.
- Seeking legal advice before starting the investigation can help establish a basis for claiming privilege.
Special considerations for workplace safety incidents:
- For workplace safety incidents (including near misses), it's recommended to conduct investigations under privilege.
- This ensures findings cannot be used as evidence in criminal prosecutions against employees, officers, or the company for safety law breaches.
- Remember, you can waive privilege later if needed (seek legal advice first), but you cannot create privilege retroactively.
Internal or external investigation?
When deciding whether to conduct an investigation internally or externally, consider these key points:
- Nature and gravity of the matter: Serious issues often require professional workplace investigators.
- Capacity and skills: Assess if internal resources have the necessary skills and time.
Tip: For serious matters, it's usually best to hire an external investigator.
Legal Professional Privilege:
- It's harder to claim legal professional privilege with internal investigators.
- Avoid starting an internal investigation and then switching to an external one. This can blur the lines and affect the legal protection of the investigation.
Investigation structure
A structured approach sets the foundation for a successful investigation. You should:
- Plan and document: Develop a clear plan and timeline, and ensure you document everything (although remember, if not under legal professional privilege, everything you record can be used in evidence in litigation);
- Communication with participants: Set
expectations, protect health and safety, prohibit victimisation and
ensure confidentiality, in a trauma informed manner:
- Prepare detailed records of interviews and statements. Make sure there is a reliable basis for your later report, to which you can refer back;
- Finalise documentary evidence. Have a second interview with the respondent to put witness accounts and documentary evidence to them, consider whether necessary to re-interview complainant; and
- Draft report, making findings. Ensure your report discusses the allegations, the standard of proof, credibility of witnesses, their evidence, your views about their evidence, and your findings. Do not rely on irrelevant information and give evidence appropriate weight. Considering obtaining a suitable report template from a professional investigator or workplace lawyer.
Suspending employment – often necessary... but not always
Sometimes, it may be acceptable to leave a person in their duties while under investigation. Other times, it will be appropriate to suspend them. At common law, an employer is entitled to suspend an employee from their employment with pay in most circumstances (certain employees can fall outside the scope). This right can be limited by operation of an enterprise agreement or contractual terms. However, you must consider whether it is necessary and whether you can implement communication and work protocols, including working remotely, instead of a suspension. A suspension should only last for as long as strictly necessary, to reduce likely impact on the employee and their mental health.
Tips, tricks and pitfalls – key take aways for employers
To conduct a good investigation, you should have:
- Clear communication: Transparent dialogue with all parties involved.
- Defined purpose and appropriate scope: Establishing these early on, in brief to investigator and communicated to parties involved. Avoid scope creep.
- Impartiality: Avoiding actual or apprehended bias of the investigator.
- Timing and timeliness: the investigation should start and proceed as quickly as reasonably necessary without being rushed. Avoid being sidetracked/ derailed by counter or cross allegations, employee complaints, and attempts at interference or redirection.
- Natural justice and procedural fairness: Provide a respondent with an opportunity to respond to allegations and any evidence relied upon, ensure relevant evidence is collected (including interviews of relevant witnesses) and given proper weight, do not rely on irrelevant matters or inexact proofs, and give a complainant an opportunity to respond to what the respondent may have said.
These pitfalls will create risk and potential harm to participants when conducting investigations:
- Unclear purpose: Meandering investigations lacking focus.
- Hasty execution or undue delay: Rushed processes compromising thoroughness and fairness; or undue delay causing harm to participants, damaging reliability of evidence and investigator's recall of interviews.
- Lack of documentation: inadequate records undermining findings.
- Bias and procedural errors: Actual bias compromises findings and apprehended bias allows findings to be impugned. Failures in procedural fairness result in unreliable results, which may be impugned.
Conducting workplace investigations demands diligence, adherence to legal standards, and respect for procedural fairness. By adhering to these principles, employers can navigate challenges effectively, safeguarding both their integrity and the well-being of their employees.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.