Police Involvement in Workplace Investigations

Vince Scopelliti - Wednesday, September 25, 2019

On occasion, police will become involved and/or need to be involved in the allegations from a workplace matter. In this situation, it's important for employers to know what their obligations are, and to be aware of some of the challenges that can arise. 

So, let's take a look at when police are or may need to be called in and what should happen once they are. 

WHAT matters require the police? 

Generally speaking, any allegation of a serious or potentially criminal nature necessitates the involvement of police. This includes allegations of physical assault, sexual assault, stalking, child abuse, significant fraud or theft. 

In the event that a complaint could have criminal implications, it is always a good idea to get the police involved as soon as possible. This helps ensure that any police investigation is not hampered by destroyed evidence, ongoing delays or similar interference. 

the employer's obligations

If police have become involved in a workplace matter, the police investigation takes precedence over the internal one. 

However, while the police investigation does take priority, an employer must still carry out an internal investigation. This is to afford the employee who is the subject of the investigation due process and procedural fairness. 

The internal investigation and a police investigation must both be treated entirely separately, but run in tandem. The internal investigation must be managed without impeding the police investigation. It is essential for the employer to communicate closely with police and provide assistance wherever required.

It is also important for an employer to remember that one of their paramount obligations is to provide a safe working environment for staff. This means that if there have been serious allegations such as physical or sexual abuse, the complainant and respondent must be separated in the workplace. Generally, staff against whom allegations have been made should be suspended on full pay, pending the outcome of the police investigation. 

the challenges involved 

It is likely that the police investigation will require the use of resources that would otherwise be engaged in conducting the internal investigation. For this reason, it can be difficult to actively investigate a workplace matter internally while the police are undertaking their own investigation. 

It can also be difficult for employers to balance the need to assist police with their legal obligations to their employees.

a case in point

This balancing act is demonstrated in the matter of Wong v Taitung Australia Pty Ltd [2016] FWC 7982. In this matter, Mr Wong, an employee who was accused of theft, named several other employees allegedly involved in a criminal enterprise. 

Police suggested that the employer not take disciplinary action in relation to the employees, in order to obtain and preserve the evidence against them. This meant that the employer permitted Mr Wong to continue working with no warnings, despite having sufficient evidence to conduct a summary dismissal.

The police were unable to obtain sufficient evidence to charge him, however he was ultimately terminated. However, the Fair Work Commission found that the summary dismissal of Mr Wong was unjust in the circumstances. 

The added factor of police involvement while undertaking internal workplace investigations presents unique challenges for employers. The balancing of police intervention into serious criminal allegations, with the strict employment principles and procedures, is both challenging and essential to ensure employers' actions are reasonable. WISE provides external investigation services as well as training in conducting investigations necessary to manage the workplace-police dynamic. 

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