Managing Risks in Workplace Investigations

Vince Scopelliti - Wednesday, December 11, 2019

managing risks in workplace investigations?

By its very nature, a workplace investigation involves sensitive and contentious information.

When a workplace investigation is required, whether this is outsourced to an external investigator or conducted in-house, it is necessary to be aware of the risks which could eventuate.

What are the key risks?

These include: 

  • Potential Breaches of confidentiality

Each party involved has the right to confidentiality. A breach of confidentiality occurs when other people/ parties are made aware of the investigation, which could cause "injury" to the complainant or the accused. Types of injury include reprisal, injury to reputation, defamation, ostracising the employee, physical altercations, or the exacerbation of mental health issues such as depression or anxiety. Of course, this is not an exhaustive list of consequences that could arise if confidentiality is breached.

  • Failing to take "timely and determinative" action

In a situation where disciplinary action such as dismissal is ultimately required, delaying action could potentially prejudice the company's position in any subsequent legal proceedings. This is because a tribunal is likely to find that, if the behaviour was sufficiently serious to warrant dismissal, it would/should have been dealt with as soon as possible. Further, if matters remain open and are not dealt with in an appropriate timeframe, there are greater chances of the issue causing conflict, uncertainly and humiliation within the workplace.

  • Risk of litigation
In matters where the actions and integrity of individuals are likely to be called into question, the risk of litigation is always significant. It is crucial that steps be taken at all times to minimise this risk, or position the company in such a way that it has a defence towards any litigation. 

  • Risk of further costs

Certainly, in situations where a company tries to save on costs by minimising the expenses of investigations, and subsequently needs to "fix" the investigation by engaging external investigators or solicitors, expenses are likely to increase. In many cases, it is better to incur appropriate fees and expenses at the outset, rather than having to pay reparatory costs.

How can you mitigate these risks?

In order to minimise the risks associated with investigations, it is prudent to follow a consistent process for each and every one. This includes:
  • Having a process map, which identifies what evidence should be obtained and which witnesses should be interviewed. 
  • The collation and review of evidence by the investigator. 
  • Interviews being conducted by an investigator, who also catalogues facts.
  • Analysis of the information acquired, in addition to determining if additional fact-finding will be necessary.
  • A determination, made by the investigator and relevant parties based on a review of the findings. Internal stakeholders will work with the investigator to determine how best to communication the decision to concerned parties. 
  • A resolution, where the investigator will document the steps and actions taken. The investigator will also arrange required follow-ups with involved parties to ensure that effective remediation has occurred as planned. 
In addition, it is essential to ensure the investigative process is comprehensive and compliant with the requirements of procedural fairness, as well as sticking to the principles of confidentiality. 

By following these steps, a company ensures that, even if litigation becomes inevitable, it is "court ready" and has a legally sound investigative process and findings which it can demonstrate to lawyers. 

Additional steps to minimise the risks of an investigation being challenged include:

1. Ensuring that all allegations are particularised before they are provided to a respondent. By doing this, a company ensures that a respondent cannot say that they were ambushed or otherwise unable to prepare a defence. 

2. Providing clear and transparent information about the investigation process, including how and when it will occur. A respondent should never be engaged in informal interviews as a way to test the waters, as this could result in subsequent complications. By the same token, arranging for external investigators from the outset can substantially lessen risks such as allegations of bias against internal investigators. 

3. Ensuring that nothing suggests that a 'predetermined outcome' has been arrived at. This includes removing any wording such as "bullying" from the complaint document. Instead, such matters should be framed, for example, as "allegations of alleged bullying".

4. Effectively balancing the need of timeliness in the investigatory process against ensuring that respondents have sufficient time to respond allegations. 

If you are concerned about the investigation process at your workplace, you can take simple and active steps to address these concerns. WISE Workplace is an expert within the field of workplace investigations and also offers training for your staff. 
 

When a Pre-Determined View Leads to an Unfair Investigation

Vince Scopelliti - Thursday, October 31, 2019

Procedural fairness must be top of mind, for all organisations when conducting a workplace investigation. Failing to allow an employee sufficient time to respond to an allegation or taking a pre-determined view of the outcome of an investigation, for example, proceeding with terminating employment, can leave an employer open to an unfair dismissal claim. 

The importance of observing all elements of procedural fairness when conducting a workplace investigation is highlighted in the Fair Work Commission decision of Mark Andrawos v MyBudget Pty Ltd (U2018/2379). 

the facts of the matter 

The applicant, Mr Andrawos, commenced employment at MyBudget in July 2016. He came to his role, ultimately as a personal budget specialist, with a significant financial industry background, and was supported by tertiary qualifications. During his employment, he received numerous compliments, but was also informally and formally counselled for behaviour including "corner cutting", lateness and a failure to follow procedures correctly.

Mr Andrawos received a total of twelve informal warnings and eventually three written warnings for a variety of misdemeanours, including inappropriate comments made to a female client, resulting in a final written warning being issued. Despite having received the final warning, Mr Andrawos was subsequently involved in two further disciplinary processes. The first regarding his punctuality and the second related to inappropriate conduct with a female colleague.

Mr Andrawos then formed a friendship with a young man, Mr McBryde-Martin, which ultimately led to him providing financial recommendations as to what Mr McBryde-Martin should do with a sizeable inheritance he had received. Eventually, Mr Andrawos suggested that his friend come to MyBudget as a client, on a "friends and family" discount. Mr McBryde-Martin subsequently received financial advice and recommendations.

At one point, Mr Andrawos suggested that Mr McBryde-Martin transfer some $90,000 into a MyBudget account and offered to act as co-signatory. This upset Mr McBryde-Martin's mother (against a background where there was, although ultimately unfounded, some suggestion that Mr Andrawos had been drinking and gambling with Mr McBryde-Martin). His mother complained to MyBudget and Mr Andrawos was immediately escorted from the building and suspended. After some investigation, Mr Andrawos was dismissed from his employment. 

THE need for procedural fairness

The Fair Work Commission considered that Mr Andrawos' suspension and ultimately termination had occurred without sufficient procedural fairness.

Specifically, it was concluded, that he had not been afforded the opportunity to provide the necessary response and context to his employer.

Evidence supporting this conclusion included the fact that Mr Andrawos was initially given less than 24 hours to prepare a response to the allegation letter he had been issued.

Further, despite requesting statements provided by his colleagues, Mr Andrawos was denied access to this information and to the telephone call recordings with Mr McBryde-Martin, and the screenshots of text messages, which were being relied on by MyBudget as evidence in the disciplinary proceedings.

Taking a pre-determined view 

The Fair Work Commission was critical of the fact that there was evidence supporting the finding that a pre-determination had been made by the employer, before the investigative process has occurred. It was particularly noted that the employer appeared to be prepared to only undertake an investigation in form and not in substance - that is, that the employer had already decided to terminate Mr Andrawos. It was also held that Mr Andrawos was also prevented from putting forward his "defence" to his managers at an early stage, which reinforced the conclusion of the existence of a pre-determined outcome.

The evidence put forward to the Fair Work Commission suggested that a key decision-maker at MyBudget, had not been briefed with all relevant information prior to conducting a fact-finding interview, again critical in supporting a conclusion that a pre-determination had already been made. Moreover, no additional enquiries were made after the conclusion of the fact-finding process, most notably that no attempts were made by the employer to speak with Mr McBryde-Martin, regarding the nature of his mother's allegations. 

THE need for separation between investigator and decision-maker

The fact that the investigation was conducted internally at MyBudget by two people who ultimately were also the key decision-makers in the termination process, was criticised by the Fair Work Commission. This perceived conflict of interest tainted the investigation process and the termination decision and was directly related to the conclusion that, while Mr Andrawos' dismissal was neither unreasonable or unjust, it was deemed to be harsh. This highlights the importance of an investigative team, whether internal or external, collecting information and material on an objective basis, before providing it to the ultimate decision-makers for a determination.

This case demonstrates the importance of observing the elements of procedural fairness when investigating workplace matters. A former employee will likely be successful in an unfair dismissal claim, where an employer has entered the investigation process with a pre-determined view of the outcome. To assist your organisation with following a fair and reliable investigation process, WISE offers both training services and external investigation services

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. 

Social Media Misconduct: The Need for a Fair Investigation

Vince Scopelliti - Wednesday, June 19, 2019

An ever-increasing key dilemma for employers in the modern age is how to deal with the misconduct by staff through their use of social media platforms. 

The list of potentially offending conduct is lengthy. For example, staff might call in sick but then post details of their activities on social media. Employees could post inappropriate, defamatory or confidential information on their accounts. One high-profile example is the sacking of a PayPal executive in 2014 who publicly ranted about his co-workers on Twitter, or more recently the well publicised matter regarding Israel Folau and his instagram post. 

Given such a potential minefield, we look at what employers should do to ensure a fair investigation relating to allegations of social media misconduct.

procedural fairness key in australian case

The matter of Singh V Aerocare Flight Support Pty Ltd [2016] FWC 6186 highlights the importance of ensuring that an investigation is thorough and involves appropriate levels of procedural fairness. This requirement applies in social media misconduct, as in all other cases.

Mr Singh was dismissed from his role as a baggage handler in October 2015. Although the reasons for his dismissal were not made immediately clear to him, after proceedings had been issued in the Fair Work Commission, the employer alleged that Mr Singh had breached its social media policy by publicly supporting ISIS and known associates. 

It was also claimed that he had made radicalised comments against the Australian Government. Of particular relevance and concern was Mr Singh's status as an airline employee. 

Before he was terminated, Mr Singh was advised that there had been complaints involving his social media posts and that there would be an investigation. However, Commissioner Hunt found no evidence that Mr Singh was told he could bring a support person to the investigation meetings. Further, although the termination related to a number of posts on social media, Commissioner Hunt accepted that not all posts were shown to Mr Singh for his response. 

Factors in the decision

Relevant factors taken into account by the Commission in determining whether conduct occurring away from the workplace can invoke disciplinary action, include conduct that is: 

  • Likely to cause serious damage to the employer/employee relationship; or
  • Damaging to the employer's interests; or
  • Incompatible with the employee's duty as an employee. 

Before the Commission, Mr Singh's evidence was to the effect that he was against ISIS and radical Islam, and that his comments had been sarcastic. 

the outcome of the case

It was concluded that the employer had not spent sufficient time investigating whether or not Mr Singh was in fact opposed to ISIS. Commissioner Hunt accepted, that if there had been sufficient evidence to demonstrate that Mr Singh had a radicalised perspective on Islam, there would have been too great a risk for an employee with these views to continue working at the airport. 

However, it was determined that in the circumstances the employer should have gone to greater effort to investigate Mr Singh's Facebook newsfeed. If that had occurred, it was considered that it would have been clear that Mr Singh's claimed sarcasm was the true motivation behind his postings. 

Accordingly, the Commission determined that, if a proper investigation had taken place, it would have been apparent that Mr Singh was not radicalised. Therefore, Mr Singh's dismissal was deemed harsh, unjust and unreasonable. 

Instead of terminating his employment, it was considered that an appropriate disciplinary action commensurate with the misconduct would have been reiterating the social media policy of the employer and insisting that Mr Singh refrain from posting incendiary material.

need help in ensuring a fair investigation? 

This case demonstrates the importance of undertaking a thorough and considered investigation before taking serious disciplinary action. In unfair dismissal claims, the Commission will not hesitate to award judgments in favour of the applicant where it is determined that the employment was terminated in a manner that is not procedurally fair.

If you would like to ensure your investigation process is fair and enforceable, WISE Workplace provides investigation services, as well as 'conducting workplace investigations' training. 

Can Employers Investigate if Complainants Ask Them Not To?

Vince Scopelliti - Wednesday, May 22, 2019

One of the more difficult aspects of managing an employment relationship is appropriately dealing with complaints, both from the perspective of the complainant and the accused. This is made even more complicated when a reluctant complainant brings something to the attention of Human Resources or management, then does not want it investigated. 

We examine why a complainant might not want to take an issue further, and what an employer's rights and obligations are in these circumstances.

why a complainant might be reluctant

There are many reasons why an employee might be reluctant to have a complaint investigated. These include: 

  • Fear of retribution - This is common in circumstances where the 'accused' holds a position of power over the complainant in the workplace. The complainant might fear reprisals and that their daily work life will become more difficult. This is particularly the case if the complaint relates to physical, sexual or emotional aggression. 
  • Fear that the complainant will not be taken seriously - The complainant might be worried their complaint will be considered 'trivial' or won't be dealt with objectively because of the position of the other party.
  • Time commitments - It is well known that an investigation will require a significant amount of time commitment from all parties. A complainant might not wish to be involved in a lengthy and time-consuming process. 
  • Lack of evidence - Complainants could feel that they are involved in a 'he said, she said' situation. The complainant might be concerned that an investigation will not ultimately support their version of events.    

The best way to address these concerns is for Human Resources or management to make clear to staff that all complaints are taken seriously and are duly investigated. This is regardless of who made the complaint, against whom it is levelled, and how much evidence might be required to fully conduct an investigation.

is a complainant allowed to withdraw a complaint? 

A complainant has the right to withdraw both the complaint and their support of any investigation. This generally spells the end of the investigation, because the person who receives a complaint is bound by confidentiality. This leaves the reluctant complainant as the only source of evidence to support an investigation.  

employer obligations to investigate

But employers are obliged to balance their duties of confidentiality with their obligations under workplace health and safety legislation. This includes eliminating discrimination and ensuring that everybody is able to undertake their jobs without unreasonable impostes. In circumstances of accusations of significant misconduct or even criminal activity, an employer may be justified in or even compelled to pursue an investigation, notwithstanding that a complaint has been withdrawn.

For example, if the complainant has raised issues of conduct that may constitute the commissioning of fraud, then the withdrawal of the complaint will not immediately result in the conduct alleged not being able to be independently investigated. There are also other considerations and duties of care that need to be taken into consideration before an informed decision to not undertake or to cease an investigation can be appropriately made. 

The dangers of a rigid policy structure

Although it is essential that all businesses have a complaints and grievances policy, there is some risk in having a procedure that is perceived as being too strict or rigid. If the general consensus amongst the staff is that there are only 'black and white' approaches toward dealing with complaints, this could result in staff being deterred from reporting incidents. This could ultimately result in employers breaching their legislative obligations and duty of care. 

At WISE Workplace, we have expertise in dealing with investigations involving reluctant parties. Talk to our team about full or supported investigation services for your organisation.

Sharing Information After a Workplace Investigation

Vince Scopelliti - Wednesday, May 08, 2019

For employers, the completion of a workplace investigation can feel like the end of a marathon. The relevant issues have been aired and discussed, a report delivered and decisions made. However, it is also important to effectively share relevant information with affected parties and the broader organisation as the investigation process draws to a close. 

It is likely that employees and other stakeholders affected by the workplace investigation will need feedback in order to comfortably move on from this often unsettling time in the workplace. 

Before commencing post-investigation communication, management should consider issues of confidentiality, the rights of all the affected parties and the best ways to share information across the broader organisation.

Providing confidence in the outcome

The period after a workplace investigation can be an excellent opportunity for both staff and management to make changes and move forward confidently from a difficult situation. 

Providing key stakeholders a broad summary of the investigative findings and a plan for improvement often fosters a sense of understanding and closure. For affected parties, a clear and concise summary of individual outcomes and actions will of course be appropriate and necessary. At every level, the goal is to communicate honestly and with a positive eye to the future.

keeping affected parties informed

Management should meet individually with those affected by the findings of the investigation. The process can be uncomfortable for those who are personally involved. There will often be a sense of apprehension, and in some cases, a curiosity about the decision-making process. 

Affected parties deserve a chance to have the outcomes and the decision-making process explained on a one-on-one basis. However, it is also important to ensure that only the appropriate amount of information regarding the investigation is shared. 

In particular, confidentiality will be necessary in relation to the statements of witnesses and other affected parties. Sensitive information, claims and descriptions have the potential to cause unnecessary harm and can jeopardise the integrity of the final report. 

A copy of the full report should not be released to those involved with the investigation. This document is accessible only by the employer at this stage. The affected parties to an investigation have a legal entitlement to be informed in writing of the findings, conclusions, recommendations and the basis of those findings. The parties therefore could be provided with a written summary of the full report, including the allegations and findings, as they relate to each individual party. 

A witness is not an affected party and should not be provided with the report or a summary unless they are also an affected party, such as a complainant or respondent. 

Communicating across the organisation

Confidentiality is of course of paramount importance. Neither witnesses nor staff want to be fed vague explanations about the outcomes of the investigations. A workplace investigation will commonly reveal deficiencies in policies and procedures, and/or the state of organisational culture. In clearly explaining the outcomes of the investigation, management can allay fears, dampen any gossip and provide a positive statement about any changes to come following the conclusion of an investigation. 

The investigation might well have been an unsettling time within the organisation. Post-investigation communication can be a valuable means of restoring confidence and providing a clear vision for future activities. For example, policies might need to be updated or individual procedures changed for the better. Positive communication about findings and the actions to be taken will help to restore staff equilibrium.

implementing change post workplace investigation 

It can be a challenge for management to know exactly where to start when explaining and implementing decisions following an investigation. 

At WISE Workplace we have significant experience with workplace investigations and helping to manage the aftermath of these processes. Should you require assistance in conducting workplace investigations and communicating outcomes, contact WISE today.

The Privacy Act: Implications for Workplace Investigators

Vince Scopelliti - Wednesday, April 24, 2019

There can be many questions, fears and insecurities that arise in the course of a workplace investigation. Experienced investigators are often asked by witnesses and other staff to divulge what has been said and by whom. This is unsurprising; after all, for one or more people their reputation and/or job could be on the line as a result of accusations made. 

Workplace investigators must take care when dealing with the information gleaned from their enquiries. The Privacy Act 1988 creates a legal structure that controls how personal information can be obtained and used. From initial enquiries through to the final report, workplace investigators must carefully weigh the privacy implications of their work.

privacy and workplace investigations

The Privacy Act 1988 places firm legal boundaries around how businesses and government agencies are to deal with the personal information of individuals, including employees. Most employers will have the capacity under the Act to deal with employee information as they see fit - providing it is for a lawful purpose. 

Workplace investigators are bound by the privacy legislation, just as any person or organisation who deals with private information is. This can lead to considerable challenges within the course of the investigation, such as having private information that might or might not be of interest to another party or witness within the investigation. It is only in very unusual circumstances that such disclosures could be lawfully made. Overall, consent will not have been given for release to another party; consent is crucial in all such situations.

personal information and the final report

The client is of course the employer in workplace investigations, and it is to the employer that briefings and reports must be directed. It is not unusual for investigators to be bombarded by employees with requests for the release of information, statements, witness accounts and the like, that have been elicited during the investigation.

The reason for the requests is certainly understandable - people will be anxious to know what has been said, by whom and how this could potentially affect their employment. Yet legally this is not information that the workplace investigator is at liberty to provide, unless express consent has been given. 

Personal information at the disposal of the workplace investigator must be returned to the employer, generally in the form of the investigator's final report. Complainants, respondents and witnesses are certainly afforded a summary of the report and findings. Yet actual statements and transcripts involving personal information are certainly protected under the Act from most curious stakeholders.   

Privacy and future proceedings

It makes sense to keep a tight hold on information released during the investigation. Considering that investigative reports are often later scrutinised for their evidentiary worth, it is important for workplace investigators to keep in mind the ramifications of privacy principles upon their work. 

For example, statements that are tainted by knowledge of what another witness has said could certainly be inadmissible or weighted lightly in later proceedings. A loose investigative structure can also see one party privy to more information than another, raising inevitable questions of procedural fairness. 

Navigating a workplace investigation is certainly a matter of juggling many moving parts. Keeping a firm reign on the use of personal information during the investigation is one task that must remain at the forefront of all activities and decisions. For assistance on ways to ensure compliance with the Privacy Act 1988 during an investigation, get in touch with WISE.

The Right Mix: Professionalism, Impartiality and Empathy

Vince Scopelliti - Wednesday, April 17, 2019

When conducting a workplace investigation, it is essential that there is consideration given to maintaining an appropriate balance between professionalism, impartiality and empathy. 

By ensuring that this balance is maintained, employers are best able to protect the interests of staff, and safeguard against allegations of inappropriate conduct during the investigatory stage. 

the need for professionalism

It is essential that professionalism carries through in all aspects of a workplace investigation. A failure to conduct the process appropriately could have far-reaching consequences for an employee - resulting in disciplinary action or even dismissal and for the employer in cases where the process, procedures and findings are legally challenged. 

Professionalism requires investigators to:

  • Ensure confidentiality - Keep any information that is disclosed or otherwise discovered during the investigatory process completely confidential. 
  • Communicate clearly - This means ensuring that all involved parties have a clear understanding of the process, the information that is required and anything else that can be expected as part of the investigation. 
  • Act with competence - When undertaking investigations into an employee's conduct, it is crucial that the investigator is thorough and performs all aspects of the role correctly and appropriately. This includes planning the investigation, conducting interviews and analysing the evidence. 

staying impartial in workplace investigations

Investigations must be impartial for the same reason they need to be professional. The investigator must try as much as possible to collect and analyse objective information and make a decision on that basis, not on personal feelings or subjective factors. 

In order to avoid perceptions of bias, all efforts should be made to ensure that there is no real or perceived conflict of interest between the person conducting the investigation and other people involved in the investigation, such as the complainant or the accused.

Staff who are known in the workplace to be particularly good friends (or particularly adversarial) with each other should not be involved in the same investigation other than as a witness. This may also extend to staff investigating their own direct reports. 

If your business is too small or otherwise structured in a way which makes it complicated for investigations to occur with impartiality, engaging a professional workplace investigator can help ensure an independent and unbiased process.

the value of empathy

Apart from just generally being the right thing to do, there is some real value in being empathetic with staff during the investigation process. 

Showing empathy in the workplace investigation context is likely to result in greater cooperation from witnesses and greater accuracy in statements. For example, most employees do not want to get one of their co-workers into trouble. By empathising with those staff and noting that they do not want anybody to get fired or have adverse consequences as a result of the interview, investigators can build up a greater rapport. 

It can also reassure those involved that investigators understand what they are going through, and that they will be supported through the process. An employee who has to make a complaint against somebody at work, or an employee having to deal with the consequences of a complaint and the potential disciplinary repercussions can suffer significant stress and trauma. This can have far-reaching consequences in the workplace.    

maintaining the balancing act

The three pillars of professionalism, impartiality and empathy are key to conducting a successful workplace investigation, but these can often be difficult to achieve in the average office. For this reason, you may wish to rely on external investigators to ensure that all key elements of a proper workplace investigation are fulfilled. If your organisation needs assistance with investigations, WISE offers both full and supported investigation services, or training for your staff.

Legal Professional Privilege and Workplace Investigations

Vince Scopelliti - Wednesday, April 10, 2019

When a workplace investigation is required, there may occasionally be good reason to seek legal professional privilege regarding the findings. This is particularly the case in matters that may require criminal investigation, such as fraud, theft or sexual harassment. 

So, is it sufficient to engage a law firm when undertaking workplace investigation if you wish to attract legal professional privilege? We take a look at the what privilege means, and its role in investigations.

what exactly is legal professional privilege? 

The concept of legal professional privilege means that communications between an employer and their engaged lawyers are confidential and need not be disclosed, for example to another party or in a court, if the communications have been created for the 'dominant' purpose of providing legal advice or in anticipation of legal proceedings.  

What is the significance of legal professional privilege? 

In many circumstances, an employer's inner workings and thought processes may be something that is best kept private. Ultimately, the key purpose of legal professional privilege is to permit employers and other parties, such as external investigations, to freely discuss information with their solicitors in order to obtain legal advice, without being concerned that the material will form evidence in legal proceedings. 

Employers may wish to maintain privilege and keep parts of certain documents confidential if, for example, there are issues with disclosing identities of complainants or witnesses, or permitting potentially inflammatory or commercially sensitive information being disseminated through the workplace and beyond. 

how can workplace investigations attract legal professional privilege? 

If an organisation wishes to obtain privilege over communications, it is not sufficient simply to engage a law firm to undertake or oversee the workplace investigation. The law firm's engagement must be able to be demonstrated as being for the dominant purpose of preparing for imminent legal proceedings, or providing advice in relation to those proceedings.

This was demonstrated in the decision of Gaynor King [2018] FWC 6006, in which Commissioner Wilson determined that the engagement of law firm Minter Ellison to conduct an investigation, under the auspices of providing legal advice, was really an investigation into workplace conduct within the employer council's policies and procedures. Accordingly, it was determined that legal professional privilege did not exist in those circumstances.      

loss of privilege

Legal professional privilege can be easily lost or waived. This can occur if a party explicitly states that they waive privilege, or if they provide a document to another party which would ordinarily attract privilege. It is important to note that it is generally irrelevant if the information was intentionally or accidentally provided - once that has occurred, it is hard to argue that the privilege should be maintained. Further, if a party attempts to rely on the contents of a document, it is rare that privilege will be successfully kept over the document. 

This was the case in the decision of Bartolo v Doutta Galla Aged Services Ltd [2014] FCCA 1517, in which the employer attempted to rely on the contents of an investigation report but did not wish to disclose it. It was held that relying on a document without providing access to Mr Bartolo was unfair, and the document had to be produced. 

WISE Workplace is highly experienced across all steps of the investigation process, including legal professional privilege implications. If you are seeking a robust, defendable investigation, contact us today!      

When to Use an External Investigator

Vince Scopelliti - Wednesday, April 03, 2019

Using in-house resources to sort out organisational problems certainly makes a lot of sense. HR departments tend to be well equipped to receive and manage internal complaints, facilitating solutions as they go. 

But while sourcing external assistance can seem unnecessary, there are certain serious workplace situations where calling in specialist investigative expertise will be the preferable solution.  

Internal or external: making the decision

When an event in the workplace requires investigation, questions arise that require timely answers. One of these will be - who should carry out the investigative process? Less impactful events such as personal differences, disputes or general rumours might naturally fall to an internal workplace investigator. After all, they will have inside knowledge of the culture and dynamics that possibly led to these ripples and allegations. 

Yet when alleged events are more serious in nature and/or the scope of the problem is potentially vast, engaging the expertise of a specialist external workplace investigator can not only relieve the internal workload. It can also mean the difference between smooth resolution of a workplace situation - or the unfortunate escalation of a matter into the costly adversarial realm. The more serious the allegation, the more important it can be to secure professional advice.    

workplace investigations - pitfalls to avoid

Whether internal or external, workplace investigators work hard to carry out investigations fairly and efficiently. In a well-run investigation, all involved will be treated in a professional and objective manner, with no overt bias towards one party or another. 

Yet unfortunately perceived bias can be just as damaging to the final collated report. One pitfall with using an internal investigator is that a perception might arise that one party was favoured over another, due to position, workplace friendship, or longevity within the organisation - just as examples. 

Similarly, if an internal workplace investigation is rushed or not provided with sufficient resources, outcomes can be similarly tarnished. It can be tempting to keep things in-house in order to save money. Yet in the long run, the overall quality of the investigative report can be tarnished, leading to the high likelihood of expensive actions by the aggrieved party.  

the expert investigator 

A further consideration when deciding whether to engage an internal or external investigator is the level of expertise. Invariably, internal investigators have other tasks and roles that take up their time in organisations. 

This is not the case for external workplace investigators. As trained professionals they have the in-depth specialist experience and up-to-date knowledge that is necessary for a fair and impartial investigation. For example, maintaining confidentiality within and across the workplace is a challenging task. An external investigator has the ability to coordinate the process in such a way as to preserve the integrity and confidentiality of all discussions.

The investigator's capability is particularly important when it comes to both the finality and reliability of the investigative report. Should an appeal of the decision eventuate, commissions, tribunals and courts will expect to see a level of thoroughness and objective detail that demonstrates adherence to the principles of procedural fairness throughout. 

In the 2017 matter of Anthony King v The Trustee for Bartlett Family Trust T/A Concept Wire Industries [2017], the Fair Work Commission certainly made it clear that imperfect investigations will be viewed dimly, stating: 'some investigation reports seen by the Commission in this jurisdiction fail to get to the heart of such a situation and rarely undertake a true balancing of the evidence seen by them'. 

Support and expertise

Yet it need not be a black-and-white choice between an internal or external workplace investigator. It is possible to access a supported investigation service. In this framework, the organisation gains assistance from an expert regarding the more complex aspects of the process, while carrying out other tasks internally. 

WISE Workplace is able to offer both full and supported investigation services. If you are concerned about making an error or a lack of knowledge in conducting your own investigation, or would like to train your staff in conducting workplace investigations, contact WISE today.