[t]here is recognition an investigation is not always the best option”. This echoes our experience that, generally, other options exist.

Should an investigation be undertaken?

Sometimes employers will commence a workplace investigation without first asking whether one should be undertaken in the first place. That is not to say that investigation should not be undertaken or avoided. Indeed, circumstances in which an investigation may be warranted include:

• If there is a statutory obligation to investigate;
• There is a stakeholder expectation that an investigation be undertaken; or
• It is impossible to form a view (even a preliminary one) regarding potential misconduct without conducting an investigation.

Of course, there are many situations where it may be entirely appropriate to not conduct an investigation, or at least consider other options first. They include:

• If there is insufficient information to frame allegations;
• The time, cost, and disruption of an investigation to the workplace is disproportionate to the issues at hand; or
• There is another way to address the issue, for example, counselling, employee undertakings, or other options given under legal advice.

If decide a workplace investigation is the only appropriate option, the next issue you’ll need to consider is what type of investigation is best.

Types of investigations

Workplace investigations can take various forms, depending on the nature of the issue being addressed, the complexity of the situation, and the potential legal implications. Understanding the different types of investigations can help employers choose the most effective method to handle the specific circumstances they face. Four common types of investigations include:

1. Preliminary investigations.
2. Fact-finding investigations.
3. Conduct investigations in which no recommendations are made.
4. Investigations in which recommendations are made.

Below, we focus on preliminary investigations and conduct investigations where no recommendations are made.

A preliminary investigation may be suitable when the employer seeks to decide the future direction of the matter, including determining whether a further, more formal, investigation should be undertaken. Generally, a preliminary investigation involves a high-level overview of uncontested facts. By doing this, the employer seeks to answer the question of whether the Respondent has a case to answer.

Conduct investigations in which no recommendations are made may be appropriate where the uncontested facts suggest the Respondent potentially has a case to answer and the allegations are sufficiently serious to warrant further inquiry. Here, the investigator will make findings whether each allegation is substantiated, not substantiated, or partially substantiated. As a general rule, the investigator should not make any recommendations.

Knowing the right investigation to use at the right time will save employers time, money, and emotional energy. Next, we explore selecting the right investigator.

Who should conduct the investigation?

The decision who should conduct an investigation depends on various factors. These include the seriousness of the allegations, the need for impartiality, and the level of expertise required to handle the specific issues involved. There are generally four types of investigators.

1. In-house investigators.
2. External investigators who are non-lawyers (no professional legal privilege).
3. External investigators who are former lawyers (no professional legal privilege).
4. External investigators who conduct an investigation under legal professional privilege.

In this article, we focus on in-house investigations only.

Conducting an investigation in-house may be most suitable if the matter is not factually complex and there is a low legal risk if a misstep is taken.

Employers may be well advised to avoid in-house investigations if there is a high WorkCover or other legal risk if a misstep is taken. An in-house investigation may also not be appropriate if the employer lacks sufficient time, energy, resources, or expertise to conduct a factually complex investigation.

Once you have selected the right investigator for the job, next comes the hard part – conducting the investigation.

Preparing for, and conducting, the investigation: Do the ‘good’ and avoid the ‘bad’ or ‘ugly’

Case law has many examples of workplace investigations gone wrong. Below are some learnings from the cases.

The ‘good’

The cases suggest employers who do the following are well on their way to conducting a good investigation.

• Allegations are carefully framed and articulated.
• The complainant is advised of any allegations that cannot be investigated.
• Participants are advised how the investigation is to be conducted, including details about the interview process, and estimated duration of the investigation.
• The respondent has a proper opportunity to respond to the allegation(s).
• The employer follows investigation processes stipulated in an applicable Enterprise Agreement, employment contract, and/or internal policies.
• Findings are made on the balance of probabilities. If the allegations are serious, the Briginshaw v Briginshaw principle applies to the standard of proof, requiring the evidence to be more compelling in proving the allegation.

The ‘bad’

Examples of investigations going badly include the following:

• The employer uses poorly articulated allegations.
• The Respondent is not provided a proper opportunity to respond, making it difficult for the employer to work out what actually happened.
• The employer undermines the independence of an independent investigation.
• Details of allegations are disclosed to other workers, which damages the Respondent’s reputation amongst his or her coworkers.
• The employer fails to follow investigation procedure in Enterprise Agreement.
• The findings not available on the evidence presented.

The ‘ugly’

Examples in which investigations have gone wrong include the following:

• The investigator interviews two witnesses at the same time.
• The employer suspends one employee but not the other in an investigation involving allegations of assault and provocation.
• The Employer argues they lost trust and confidence in the employee despite him not being suspended for several months after the investigation commenced.
• Investigation takes too long (for example over 12 months).

Conclusion

Generally, there are three issues employers should consider in approaching investigations. First, is it necessary to conduct an investigation? Second, if the answer to that question is “yes”, which investigation is most suitable given the legal risks the employer is facing? Third, should the investigation be conducted internally or externally, by a non-lawyer or lawyer, and with or without legal professional privilege?

Asking these questions before undertaking an investigation, rather than realising forensic issues halfway through one, may save you time, money, and most importantly, emotional energy.

Adam Colquhoun (Principal) and Jolin Chao (Law Clerk)

This article is general information only. It is not legal advice. If you need legal advice, please contact us.