Choosing an investigator to conduct your workplace investigation can be a complex task. Do you look internally or externally? What are the features of a high-quality workplace investigator? And what common problems can arise along the way? Common issues that employers should consider include:
- How confidentiality and fairness are to be balanced.
- How quality will be assured without undue cost.
- How and when information will be communicated throughout the workplace investigation.
Establishing end-to-end quality in your workplace investigation can save considerable time and resources down the track. It is far better to plan well prior to an investigation, than to find yourself with an investigation outcome that is more harmful than helpful.
Confidentiality versus procedural fairness
Right at the start of any workplace investigation, it is vital that all parties understand the nuances and limits of confidentiality. While it can be tempting to invite witnesses to ‘speak freely’, can you be confident about the extent to which information is, in fact, protected? Employers can at times believe that their lawyers have certain communications ‘under wraps’ via legal professional privilege. Yet some workplace investigators have learned the hard way that such assurances can be dangerously hollow. Despite some employers depending upon lawyers to conduct the ‘best’ investigation, it can often be the case that a specialised workplace investigator will more readily understand the particular nuances of the confidentiality/ fairness divide.
A related factor complicating the confidentiality issue is the need for rigorous adherence to the principles of procedural fairness throughout the workplace investigation. If a party is unfairly prevented from accessing and responding to adverse material relevant to their situation for example, procedural fairness might well be lost. Understanding and communicating the requirements of procedural fairness are core elements of the investigator’s role.
Cost versus quality
It is certainly understandable that business owners wish to have workplace investigations finished quickly and efficiently. An internal solution can seem ideal – you don’t have to lose valuable time and money explaining the environment, systems and personnel to your internal investigator. As with many ‘simple’ options however, there are particular pitfalls to consider. Consciously or not, an internal investigator might be pressured to support particular interests – including the employer’s, the complainant’s or those of certain colleagues. Such a slant can unfortunately lead to investigative outcomes that fail the test of procedural fairness.
A related problem can be the continuous use of the same ‘reliable’ external service provider. A better strategy for quality investigations is to utilise a number of external investigators. Reports and outcomes thus have a greater chance of reflecting true independence.
Clear communication
An experienced and professional workplace investigator will have a solid communication strategy in place for the duration of the investigation. Avoid selecting an investigator who cannot clearly describe the investigative process in terms of available communication channels, plus the key delivery dates for investigation outcomes.
Such outcomes can include the draft investigation report, feedback options and the final report. An astute workplace investigator knows how to employ flexibility in communication – without jeopardising the overall fairness of the process. Professionals in the field understand the importance of accessibility without bias. If an employer, complainant or other party attempts to exert undue influence over proceedings, an investigator must be able to clearly delineate and communicate appropriate boundaries.
Education is power
It can be counterproductive to simply criticise employers who decide to conduct internal workplace investigations themselves. For workplaces where the nature and pitfalls of workplace investigations are well-understood, an internal investigation might in fact be an adequate solution. With appropriate education and assistance, there is room for workplace investigations to be carried out well in-house.
Where a work situation is complex and/or fraught with issues however, an external professional investigator might be the safer option. If this is the option taken, employers should vet potential investigators about their proven record in conducting high-quality workplace investigations. With solid research and planning, employers can build a solid defence against the pitfalls of workplace investigations.
