Legal Issues When Conducting Workplace Interviews

When a workplace investigation has to be conducted, the most valuable information will generally be obtained through interviewing the staff involved in the incident and any witnesses. This information will play a critical role in determining what has happened or who or what was responsible.

In order to obtain relevant and reliable information from the parties involved, good communication skills, an eye for detail and the ability to think on your feet is required. However, it is equally important to remember your legal obligations when interviewing staff.

legal issues

In conducting an interview process, key legal issues include:

• The creation of statements
  When an interview is conducted, a statement recording the comments made during the interview must be prepared and provided to the interviewee for review and, if the contents of the statement are agreed upon, signature.
• Audio recordings
  The laws on the creation of audio recordings differ in each Australian state. Generally speaking, if a person is advised that they are being recorded and they do not explicitly object, it is acceptable to continue with an audio recording. It is best practice to seek their explicit approval once recording has commenced. It is important to bear in mind that a transcript of the recording must be made available to the interviewee upon request.
• Support person
  Anybody involved in a workplace investigation, but especially the person against whom allegations have been made, must have the opportunity to have a support person of their choice present during each step of the investigative process, particularly during the interview. Witnesses have to be informed of this right in advance, in order to provide them with the opportunity to find a suitable support person.

Procedural fairness and privacy

Perhaps the most important aspect of any workplace interview is ensuring that the process is conducted in accordance with the rules of procedural fairness. This includes:

• The complainant and the respondent have the opportunity to provide their entire version of events and to have a support person present.
• The respondent is advised of the particulars of the allegations against them, so that they can respond in detail.
• The respondent is advised of their rights in relation to the investigative process.
• Proceedings are not delayed unnecessarily.
• The respondent has sufficient time to prepare for the interview process. Best practice is to allow at least 48 hours’ notice but preferably more, depending on the complexity of the particulars.
• All relevant witnesses are interviewed.
• Exculpatory and inculpatory evidence is taken into account.
• All evidence is considered in an unbiased and impartial manner.
• No finding of guilt or otherwise is made until after all parties have had the opportunity to participate in the interview process and had the opportunity to respond to the allegations against them.

All parties involved in the investigation are entitled to privacy. Witnesses who have disclosed information in confidence, may be intimidated by the fear of victimisation or backlash. This means that information divulged during the interview process is to be kept strictly confidential, unless it is absolutely necessary for the resolution of the dispute that it be shared beyond the immediate investigative team.

tips for successfully conducting an interview

In addition to taking the above steps, inexperienced interviewers may wish to consider obtaining specific legal advice, depending on the situation and the allegations which have been made.

The interview process should always be undertaken from the perspective that only information which is collected fairly and decisions which are made in an unbiased manner will support disciplinary or administrative action against any employee.

If you dismiss an employee or take disciplinary action against them without affording procedural fairness and establishing the relevant facts, it is possible that Fair Work Australia or other relevant tribunals may find the action was harsh, unjust or unreasonable in the circumstances.

An investigation may be costly and time consuming, however the consequences of not conducting one may be even greater. If you need assistance in conducting investigations and undertaking investigative interviewing, contact WISE Workplace today, or purchase our ‘Investigative Interviewing Book’.