Workplace Investigation Options

Workplace Investigation Options: Types of Workplace Investigations

Get informed about the options for workplace investigations

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Employers must take care to select the right type of investigation for disputed issues that arise in workplaces.

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Workplace Investigation Options

Disciplinary Processes Australia
For any employer or manager considering commencing a workplace investigation, it is important to understand the nature and purpose of the different types.
  1. Preliminary Investigations
  2. Internal Investigations
  3. Guided Investigations
  4. External Investigations

Types of Workplace Investigations

For any employer contemplating commencing a workplace investigation into an allegation or issue that has arisen, it is critical to understand the options available. The different types of workplace investigations available need to be considered to determine what will be appropriate in the circumstances. There are essentially four different types of workplace investigations that employers should contemplate (outlined below):

  1. Preliminary Investigations
  2. Internal Investigations
  3. Guided Investigations
  4. External (Independent) Investigations

In order to decide which type of workplace investigation is appropriate, it is necessary to ask a few questions:

Is an investigation necessary?

Workplace investigations can arise for any number of reasons. Examples of why an employer or manager may contemplate a workplace investigation include:

  • complaints or grievances
  • underperformance concerns
  • work health and safety concerns
  • workplace conduct concerns
  • workplace inefficiency concerns

The nature of the concern may influence the type of response that is appropriate. Of course, a workplace investigation will not always be necessary or appropriate. There are many situations where it may be preferable to address an issue through informal discussions, mediation or additional training. However, some issues may only be properly resolved through a formal workplace investigation, such as disputed allegations of sexual harassment or workplace bullying. Some complaints, such as sexual harassment, clearly give rise to a work health and safety risk and the failure of an employer to properly respond may increase the likelihood they will be found vicariously liable for any resulting harm as well as face investigation by regulators. For this reason, sometimes an employer will feel little choice but to initiate some form of investigation into a workplace issue.

It is always important for employers to have regard to relevant awards, enterprise agreements, employment contracts, and policies and procedures to ensure compliance with any requirements with respect to workplace investigations. The failure to properly deal with issues in accordance with such arrangements can expose an employer to successful claims. For example, in Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177, the Full Court of the Federal Court found that the employer had breached its employment contract with an employee by failing to comply with its own investigation policy.

What is the nature of the allegation or issue?

The more serious the allegation or issue, the more likely an investigation will be warranted. For example, if an allegation relates to unlawful conduct or serious misconduct, which is almost inevitably going to require disciplinary action if proved, then it is more likely a formal investigation of some kind will be warranted. On the other hand, an employer may receive a complaint or grievance over a relatively minor issue, in which case there may be good reason to avoid an investigation altogether and instead resolve it through an informal discussion or mediation.

Who should investigate the allegation or issue?

While a business operator or manager may know they will be the one who has to decide what to do about an allegation or issue, it does not mean they must also be the one to conduct the investigation. There is a range of considerations that should go into the decision as to who should conduct a workplace investigation, including:

  • Whether there will be bias or perceived bias if an internal employee conducts the investigation;
  • Whether the business or organisation has the resources to investigate;
  • Whether the seriousness or complexity of the investigation requires an expert in investigations; and,
  • Whether the allegation or issue ought to be referred to a regulatory body or law enforcement agency.

Employers need to consider whether an allegation must be – or ought to be – referred to a regulatory body or law enforcement agency. In some cases, failure to appropriately refer an allegation or issue to a regulator or law enforcement agency will itself constitute a breach of the responsibilities of the employer and open it up to disciplinary or criminal consequences.

Answering the question ‘Who should investigate the allegation or issue?’ may require reference to relevant awards, enterprise agreements, employment contracts, and policies and procedures. The answer necessarily affects the type of workplace investigation to be undertaken.

1. Preliminary Enquiries & Investigations

A preliminary enquiry or preliminary investigation often arises in response to vague, uncertain or inadequate information. It may relate to suspected wrongdoing such as fraud against the company, or misuse of confidential information. A business or organisation may undertake a preliminary enquiry or investigation in order to protect its interests and decide what response, if any, is warranted in the circumstances. Such preliminary investigations are aimed at identifying the issues, rather than putting allegations to a respondent. From the preliminary enquiry or investigation, it may become apparent that training or coaching is necessary to resolve an issue, or that the issue requires a full investigation.

A preliminary investigation may be appropriate where a business or organisation is concerned about something that has occurred or is occurring but does not consider specific findings of wrongdoing are necessary or desirable. An example may be where there is apparent conflict among workers that can be resolved through mediation or coaching, rather than a process that may lead to disciplinary action.

2. Internal Investigations

Many larger businesses and organisations have internal managers, dedicated human resources professionals and in-house counsel that have the expertise to conduct complex investigations into serious allegations. Having large internal resources to draw upon often means a procedurally fair investigation can take place, often within tight timeframes.

The advantage of an internal investigation for a business or organisation is that the investigator will often have a clear working knowledge of the relevant policies and procedures, as well as the unique operations and culture of the workplace. Whilst knowledge of operations and culture are potential sources of bias, provided such issues are properly managed and the investigator maintains an impartial position such investigations can commence and conclude in an efficient way.

The main drawback to an internal investigation relates to the unpredictable nature of some investigations, which can see conflicting witness accounts requiring evaluation. Where individuals have a long history in an organisation, there is a greater risk that perceptions of bias will arise. Such was the case in Adachi v Qantas [2014] FWC 518, where an internal investigation was called into question because of a long-standing relationship between the investigator and one witness. The decision to dismiss the employee based on that investigation was subsequently overturned, and the employee reinstated.

3. Guided Investigations

A guided investigation is one where a business or enterprise seeks to conduct an internal investigation but in doing so obtains external guidance, often from a law firm or investigations agency. The benefit of a guided investigation is it matches the advantages of an internal investigation while minimising the risk that it will not withstand review by a court or tribunal.

Guided investigations are often suited to small to medium-sized businesses and organisations that wish to complete an internal investigation but which may lack the experience or expertise with respect to any of the following aspects of an investigation:

  • Managing procedural fairness requirements
  • Drafting allegations and particulars
  • Conducting witness interviews
  • Obtaining and analysing evidence
  • Preparing investigation reports

In a guided workplace investigation, an experienced lawyer may be able to provide guidance on all aspects of the investigation, or simply one aspect of it. Whilst a guided workplace investigation may afford employers greater confidence in being able to run a procedurally fair process, in some cases there may be no alternative than to initiate an external (independent) investigation due to perceptions of bias or conflicts of interest.

4. External (Independent) Investigations

An external, independent investigation allows a business or organisation to have allegations or issues investigated impartially, so as to allow a procedurally fair process to occur. Such investigations are often appropriate for serious allegations of wrongdoing and, in particular, when managers are implicated. A thorough and independent investigation allows decision-makers to understand the allegations investigated, evidence obtained and findings made, so as to make decisions based on those matters.

In some cases, an employer may seek to preserve its legal professional privilege with respect to an investigation, which can see lawyers for the business or organisation engage the external investigator. In working with a law firm and external investigator, employers maximise the advice and information available to them, as well as the independence of any investigation, so as to consider their legal options prior to making any decisions.

On-Demand Resources

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On-Demand Resources

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