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Are workplace investigations confidential?

man writing on a pad

Formal workplace investigations can have a significant impact on the individuals involved, regardless of whether they’re the complainant, respondent or a witness and it’s common for those involved to be concerned about the degree to which confidentiality will be maintained.

If you’re involved in a workplace investigation and want to understand the confidentiality requirements, here’s an overview of how Emverio Workplace Solutions handles confidentiality in our workplace investigations across Australia.

Confidentiality of workplace investigations

Workplace investigations are confidential processes.

When a workplace investigation is undertaken and confidentiality is not maintained, it could have a significant negative impact on those involved and could escalate to contaminate the broader team. Not keeping confidentiality could also be detrimental to an individual’s reputation, credibility or professional standing within the organisation and/or industry. In some cases, it could be detrimental to someone’s mental health and wellbeing causing psychological injury or exacerbate a pre-existing mental illness, or even lead to a defamation case.

Individuals who are interviewed as part of a workplace investigation often don’t want their statement publicised and want to be reassured that their interview remains confidential. As an external provider of workplace investigations, we do not release any information to anyone other than the employer (or their legal representative) unless we have been legally compelled to do so. 

At the commencement of any workplace investigation, the employer (or investigator appointed by the employer) normally instructs everyone involved to treat the investigation as confidential. Individuals should not discuss or share any details with anyone outside of the investigation, unless it is their industrial advocate and/or for their mental health and well-being (such as a counsellor or other allied health professional).  

We keep any statements made in the course of the investigation confidential.  However, it’s important to note that all our interviews are audio recorded, transcribed and attached to our final reports. At Emverio Workplace Investigations, a copy of the final report is  provided to the employer, and it is up to your employer to determine whether all or part of the report is shared with any other parties. Once we provide the report to the employer, we don’t have a lot of control over what the employer does with the information in the report.  For more information about what your employer does with its reports, consult your workplace policies and procedures, or alternatively, speak to your Human Resources team.

It is generally accepted as best practice that employers provide some details about the findings of the report to the respondent and only share details of the matter with those who need to know (for example, if any findings will impact them). It is also common practice that employers will provide a summary of the outcome to the complainant, as long as it doesn’t breach any other person’s right to privacy and confidentiality.  

This approach ensures all the information collected by the investigator remains confidential and minimises the opportunity for further escalation of the conflict within the team. We always recommend that employers store their reports in a separate database where access is restricted.

Why confidentiality might not be able to be maintained

While witness statements or information relating to a workplace investigation should always be kept confidential, there are some scenarios where maintaining confidentiality may not be possible.

  • Anonymous Complaint: In some cases, a complainant may request to remain anonymous, for example – if they have a genuine fear for the health and safety as a result of raising a lawful complaint. In cases where anonymous complaints are permitted (for example eligible whistleblowing complaints), the respondent may still be able to deduct who the complainant is based on the circumstances that might be put to him/her at the interview (see point below). It’s very important that if you fall within the above category to speak to your employer about strategies to maintain your safety whilst the matter is being investigated.
  • Procedural Fairness: Serious allegations of misconduct, which could result in disciplinary action or dismissal require the process to be robust and procedurally fair to each party involved. This includes giving the respondent as much information as is needed to be able to fully respond to those allegations. In order to do this, the investigator may be required to share names or details which could identify (even by deduction) a complainant or a witness, even when provided anonymously.

Legal Privilege

(also known as Legal Professional Privilege)

As a general proposition, communications between solicitors and their clients are protected by legal professional privilege, allowing communications between solicitors and their clients to be frank and honest without fear of disclosure.  

However, that does not automatically mean that because a lawyer is carrying out the workplace investigation that the investigation will automatically attract legal privilege.  

There is some case law that establishes that an employer can waive that right to legal privilege if an employer relies on the contents of the workplace investigation report to form conclusions about what further actions they will take. Under those circumstances the Court has held that it would be unfair to not allow the employee to have access to that report.  

It is important to understand that there is a distinction between carrying out a workplace investigation and the provision of legal advice. The latter attracts legal privilege, the former does not necessarily or automatically. You must discuss this with your workplace lawyer, if you want your workplace investigation to be covered by legal privilege.

Emverio Workplace Investigations

At Emverio Workplace Investigations, we provide affordable, compliant and robust external workplace investigations services. You can engage us through your lawyers or directly.  

As part of the larger Emverio Workplace Solutions group, we specialise in investigating a wide range of employee conduct including complaints about bullying, discrimination, sexual harassment, misconduct, whistleblowing and other misconduct.

Our highly experienced investigators ensure your workplace investigations are conducted quickly, fairly and confidentially, enabling you to make informed decisions based on findings which will withstand robust third-party review.

Contact the team at Emverio Workplace Investigations to find out more or discuss your requirements.

This article includes information from the following sources:

Common scenarios that warrant a workplace investigation

When conduct that breaches a workplace policy occurs, a fact-finding workplace investigation can help you to determine what further actions are required. If you’re unsure if a complaint or issue in your workplace warrants a formal investigation, here are some examples of common scenarios where an investigation could be worthwhile.

Discrimination

Not all discrimination is unlawful.  For example; a bouncer at a nightclub can refuse you entry if you don’t meet their dress code.  However, if the bouncer refused you entry because of a personal characteristic that the law deems ‘unlawful’ then that could be considered ‘unlawful discrimination’.  

In a workplace, being discriminated against means that an employer takes an adverse action against you because of one of the following attributes: race, color, sex, sexual orientation, age, physical or mental disability, marital status, family or carers responsibility, pregnancy, religion, political opinion, national extraction or social origin.  

Discrimination can also occur at any stage within the employer/employee relationship, including during the recruitment process, when offering opportunities for training or promotion, or when selecting candidates for retrenchment or dismissal.  It includes full time, part time and casual employees, probationary employees, apprentices and trainees, and individuals employed for fixed periods of time or tasks.

In Australia, the penalty for unlawful discrimination can be up to $63,000 for corporations and $12,600 for individuals and the court may impose other orders for injunctions, reinstatement and/or compensation.

The Fair Work Commission clarifies an adverse action as; an action that is unlawful if it is taken for a discriminatory reason. The Fair Work Act 2009 (FW Act) describes a number of adverse actions.

Adverse action taken by an employer includes doing, threatening or organising any of the following:

  • dismissing an employee
  • injuring an employee in their employment
  • altering an employee’s position to their detriment
  • discriminating between one employee and other employees
  • refusing to employ a prospective employee
  • discriminating against a prospective employee on the terms and conditions in the offer of employment.

Sexual Harassment

Workplace sexual harassment can attract various penalities under federal, state and territory laws.  The laws can apply to both companies and / or individuals for breaches. 

Allegations of sexual harassment are serious.  Where an accusation is made a formal investigation by a skilled and experienced investigator is recommended.

Employers must consider: internal policies and procedures, state workplace health and safety legislation, state anti-discrimination laws, federal human rights and equal opportunity laws and federal workplace laws. 

The legal test for sexual harassment in the federal Sex Discrimination Act has three essential elements:

  • the behaviour must be unwelcome; unwelcome conduct is conduct that was not solicited or invited by the employee, and the employee regarded the conduct as undesirable or offensive
  • it must be of a sexual nature;
  • it must be such that a reasonable person would anticipate in the circumstances that the person who was harassed would be offended, humiliated and/or intimidated.

A complaint of sexual harassment will not necessarily be dismissed because the person subjected to the behaviour did not directly inform the harasser that it was unwelcome. However, there does need to be some indication from the person’s conduct or the surrounding circumstances that the behaviour was in fact unwelcome.

Bullying

Workplace bullying is repeated and unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety.

It is a risk to health and safety because it may affect the mental and physical health of workers. Taking steps to prevent it from occurring and responding quickly if it does is the best way to deal with workplace bullying.

Bullying can take different forms including psychological, physical or even indirect—for example deliberately excluding someone from work-related activities. It can be obvious and it can be subtle, which means it’s not always easy to spot.

Some examples of workplace bullying include:

  • abusive or offensive language or comments
  • aggressive and intimidating behaviour
  • belittling or humiliating comments
  • practical jokes or initiation
  • unjustified criticism or complaints.

Employees who have been on the receiving end of this type of behaviour could experience symptoms such as anxiety, depression and other physical side-effects. In some cases, it can even lead to an increased risk of suicide. 

Workplace bullying can result in a breach of state or territory workplace health and safety (WHS) laws which all businesses have an obligation to comply with.

For employers, the consequences of inaction are significant. Failure to take steps to manage the risk of workplace bullying can result in a breach of WHS laws.  In Heads Up (an initiative developed by Beyond Blue focused on creating mentally healthy workplaces) estimates that workplace bullying costs Australian organisations between $6 billion and $36 billion per year when considering everything from lost productivity, increased absenteeism, poor morale and time spent documenting, pursuing and defending claims. 

Reasonable management action taken in a reasonable way is not workplace bullying.  Differences of opinion and personal disagreement are not generally considered workplace bullying.

Conducting workplace investigations is an integral part of a robust strategy to design safe workplaces.  It means that workplaces take bullying allegations seriously, and it will encourage disclosures as well as deter mischievous or vexatious complaints from being made.   

How to start an investigation

While a business can elect to conduct an investigation internally it may backfire where there are perceptions of bias, and / or where the person appointed does not have the requisite skills or experience or time to conduct a thorough investigations.  Additionally, they may not want to be an investigator where they are responsible for making decisions after findings have been made.  There are several benefits to appointing an independent investigator.  Experienced Emverio Workplace Investigators are well-equipped to manage every stage of the process.  They will remain impartial and apply the principles of procedural fairness throughout the investigation.  

At Emverio Workplace Investigations we follow a carefully developed best-practice methodology to investigate a range of issues relating to employee conduct including complaints about discrimination, sexual harassment, bullying, fraud and other misconduct. Your investigation will be conducted promptly, impartially and professionally in consultation with you so that you are able to make robust decision based on fact.

To find out more or discuss your requirements, contact the team at Emverio Workplace Investigations.

This article includes information from the following sources:

What happens during a workplace investigation?

Accusations of unlawful conduct in the workplace need to be taken seriously, but before drawing conclusions about what you think happened, it’s important that the process that you have used to draw those conclusions are procedurally fair.  Why?  Because if you don’t you could find yourself subject to an ‘unfair dismissal claim’.  But broader than that, unfair management decisions has a deleterious impact on your team, its culture, productivity, attracting and retaining staff, health and well-being of individuals and the broader team and increased conflict costs (time, increased insurance costs and responding to claims). 

A robust and procedurally fair workplace investigation ensures that managers and decision makers can determine with certainty what further actions are warranted, based on the outcomes of that investigation and demonstrates to your employees that you take their concerns seriously and deal with them fairly.

Before commencing a workplace investigation, it’s important to understand what constitutes a fair process and how to assess any information collected using the civil standard of proof the ‘balance of probabilities’ so that you can make robust and fair decisions.

When to investigate a complaint.

  1. Allegations / complaints

Every workplace investigation starts with an allegation or complaint. This could relate to anything from bullying, discrimination or sexual harassment, to fraud, theft or inappropriate behaviour. Sometimes complaints are about other matters such as; management style, someone’s tone or attitude, performance, communication, allocation of work or resources.  When an allegation is made, it’s important that you obtain as much specific detail about it as possible, without forming any conclusions, such as:

  1. What actually happened (who did what)?
  2. When did it happen (date / time)?
  3. Who else was there?

There may be multiple incidents that you will need to investigate.  These form the basis of the allegations.  The more accurate information you can obtain the better decisions you can make about what intervention is the most appropriate.

Who should investigate?

  1. Assess what type of investigation is warranted

You will need to determine whether the allegations are serious enough to warrant an investigation and what sort of investigation you need.  At this stage it is important to refer to your organisation’s policies and processes to assist you to make a decision about whether or not the matter can be dealt with informally, internally or requires an external investigation. 

We recommend a workplace investigation where the allegations (if substantiated) would attract disciplinary action or termination.  When considering whether to appoint an external investigator you need to consider the following:

  • Whether the employee has requested an external investigation. Employment Tribunals have been critical of employers who have conducted sloppy or self-serving internal investigations (Evans v Ikkos Holdings Pty Ltd and Ythos Holdings Pty Ltd and Ikia Holdings Pty Ltd T/As Pasadena).  The Fair Work Commission has recommended in future, where an employee vigorously asserts that an internal investigation into bullying allegations will lack transparency or independence, it may be prudent for the employer to engage an independent third party to conduct the investigation.  Xiaoli Cao v Metro Assist Inc; Rita Wilkinson [2016] FWC 5592 (19 August 2016)
  • Whether you have the skills / knowledge or experience to conduct a robust workplace investigation internally.  
  • The relationships between co-workers, managers, HR and decision makers that may be perceived as being biased (even a perceived bias can compromise an investigation).  For example, it is best practice that the investigator is not the same person as the decision maker.  The decision maker will determine what further action, if any, is warranted based on the outcome of that investigation.  These are two different functions.
  • The respondent (person complained about).  If the respondent is senior (a Manager, an Executive) or is likely to attract attention in the public, or is a particularly sensitive matter, it may be unfair to ask that someone investigate the matter internally.
  • Your budget.  The larger the organisation the higher the expectation will be that the business has the resources to conduct more robust investigations.
  • Whether the internal investigator’s workload will allow them to have the time to conduct a robust and compliant workplace investigation.  
  • Seriousness of complaints.  For example; if the allegations are substantiated, what would be the worst outcome?  If it is training or counselling, then you might want to consider a less formal approach to deal with the complaints.  For criminal and unlawful matters you may be compelled to report the behaviour to the police or a regulatory agency.  This does not negate your responsibility to conduct your own workplace investigation.  However, the workplace investigator can work with the agency to ensure that they do not interfere with those agency investigations.  
  • How to manage the communications with and manage the complainant (person complaining), witnesses, respondents (sometimes employers also use the words ‘subject officers’ and / or ‘persons of interest’).  When and how to notify participants and what information they are entitled to.  Whether or not to stand people down whilst the matter is being investigated and what to consider when making this decision.

All the above factors will determine whether you choose to engage an external workplace investigation provider or whether you conduct the investigation internally.

How to choose an external workplace investigator?

Currently the licensing regime for workplace investigations is subsumed into ‘private investigations’ which is a State regulated function.  The certification is inadequate and unrepresentative of the core tasks required to be carried out by a workplace investigator (for example; interviewing, the standard of proof, applying principles of procedural fairness, weighing evidence) and significant areas of expertise are missing from the standard Cert IV training and licence requirements.  Certain disciplines have expertise in particular areas, for example; workplace lawyers have an understanding of workplace laws, police officers have expertise in interviewing, HR have intimate knowledge of their workplace policies.  So it can be challenging to find an investigator with specific skills and knowledge to conduct robust investigations with broad skills, without over-capitalising and within your budget.   

Accordingly, having a ‘licensed investigator’ does not mean that you will necessarily be engaging a workplace investigator with the requisite skills and expertise in conducting workplace investigations.  

Overall there is a fragmented and inadequate licensing regime for workplace investigators and there have been calls for a regulatory overhaul (Unsystematic and Unsettled: A Map of the Legal Dimensions of Workplace Investigations in Australia, Adriana Orifici, UNSW Law Journal, Volume 42 No 3, September 2019).

Nevertheless here are some guidelines to assist you to manage your workplace investigations.

  1. When choosing an external, independent workplace investigator it is important for you to consider:
  • Drafting your own Terms of Reference (TOR) or Scope of Works.  The TOR captures details such as what you want the investigator to investigate, the key contact people (usually HR or a senior manager and someone to assist with the administration and logistics of scheduling interviews), the policies you want the investigator to use, who you want the investigator to interview, what sort of findings you want the investigator to make, the investigation methodology / process or templates you want them to use, confidentiality protocols, what you want in the report and any other relevant matters.  If you are engaging an investigator for the first time, ask if they can forward you some de-identified TOR’s that you can use to assist you to determine the Scope of Works.  This is really important to ensure that investigators stay on track and that the investigation has focus and structure. And, that both you and the investigator have your expectations aligned. 
  • Communication protocols.  Communication is essential for the smooth delivery of a workplace investigation.  Clarifying the contact point to assist notify employees, provide information and scheduling interviews.  In addition, who the final report goes to.  Who to discuss more material matters with, such as, if the investigator obtains information outside of the scope of the investigation
  • Timeframes.  Ensure that investigator has the capacity to undertake the investigation within a reasonable timeframe.  
  • Methodology.  What methodology do you want the investigator to use?  If you don’t know, ask the investigator for a short summary of the methodology and ask questions if you don’t understand it.
  • Video / audio recording.  As a standard practice all interviews should be audio recorded and independently transcribed.  At Emverio Workplace Investigations all our interviews are conducted online and video / audio recorded.  
  • Editing / drafts.  It is also important to commit to how many drafts you agree to.  Who does the first draft go to for review.  What can / can’t be edited, and how to deal with material changes.  
  • Complaints Process.  Often if you have an independent contractor undertaking an investigation, you have no way to have their work reviewed independently and raise complaints / concerns with.  At Emverio Workplace Investigations we have a National Practice Manager who is always available to address any concerns.

More about Emverio Workplace Investigations

At Emverio Workplace Investigations, we specialise in investigating inappropriate, unlawful or employee misconduct, including workplace complaints about; bullying, discrimination, sexual harassment, inappropriate behaviour and other misconduct.

Our processes ensure that your investigations will be conducted quickly and in a manner that is procedurally fair, enabling you to make informed decisions based on findings which will withstand robust third-party review. 

Emverio Workplace Investigations use a national, multi-disciplinary team who work together to provide robust investigation reports, that you can rely on and have the confidence to make decisions, quickly.

Contact the team at Emverio Workplace Investigations to find out more or to discuss your requirements.

Common scenarios that could warrant a workplace investigation

When conduct that breaches a workplace policy occurs, a fact-finding workplace investigation can help you to determine what further actions are required. If you’re unsure if a complaint or issue in your workplace warrants a formal investigation, here are some examples of common scenarios where an investigation could be worthwhile.

Discrimination

Not all discrimination is unlawful.  For example; a bouncer at a nightclub can refuse you entry if you don’t meet their dress code.  However, if the bouncer refused you entry because of a personal characteristic that the law deems ‘unlawful’ then that could be considered ‘unlawful discrimination’. 

In a workplace, being discriminated against means that an employer takes an adverse action against you because of one of the following attributes: race, color, sex, sexual orientation, age, physical or mental disability, marital status, family or carers responsibility, pregnancy, religion, political opinion, national extraction or social origin. 

Discrimination can also occur at any stage within the employer/employee relationship, including during the recruitment process, when offering opportunities for training or promotion, or when selecting candidates for retrenchment or dismissal.  It includes full time, part time and casual employees, probationary employees, apprentices and trainees, and individuals employed for fixed periods of time or tasks.

The Fair Work Commission clarifies an adverse action as; an action that is unlawful if it is taken for a discriminatory reason. The Fair Work Act 2009 (FW Act) describes a number of adverse actions.

Adverse action taken by an employer includes doing, threatening or organising any of the following:

  • dismissing an employee
  • injuring an employee in their employment
  • altering an employee’s position to their detriment
  • discriminating between one employee and other employees
  • refusing to employ a prospective employee
  • discriminating against a prospective employee on the terms and conditions in the offer of employment.

A case study:

You have recently employed someone from who is a Muslim.  They have requested to have Fridays off to exercise their right to prayer.  You have agreed.  They have then complained to you that conducting the senior staff meeting on Fridays is discrimination and requests that you change the day of the meeting.  You refuse.  The meeting has been held on Fridays for over two years, it is online so that all staff across Australia can attend, the employee can review a recorded copy of the meeting and contribute to items by proxy.  The meeting is also held between 9 – 11 am and the employee can attend from home if he wanted to.

Question:  Is this likely to be discriminatory?

A case study:

You have recently employed someone from who is a Muslim.  They have requested to have Fridays off to exercise their right to prayer.  You have agreed.  They have then complained to you that conducting the senior staff meeting on Fridays is discrimination and requests that you change the day of the meeting.  You refuse.  The meeting has been held on Fridays for over two years, it is online so that all staff across Australia can attend, the employee can review a recorded copy of the meeting and contribute to items by proxy.  The meeting is also held between 9 – 11 am and the employee can attend from home if he wanted to.

Question:  Is this likely to be discriminatory?

Ultimately is it up to the Commissions and Tribunals to make a decision on this.  However, as an employer you would need to ask yourself; has the employer taken an adverse action against the complainant?  And, if so, is that adverse action based on an unlawful attribute?  You would need to be able to articulate the reasons for your decision and any further actions that you take and this is where you would rely on your fact-finding investigation.  If, after your investigation, you find out that the meeting was actually always held on Tuesdays instead of Fridays and it only recently changed after the employee’s request, would that change your mind? This is why it is always important to have a robust workplace investigation that you can rely on to make good decisions.

Sexual Harassment

Workplace sexual harassment can attract various penalities under federal, state and territory laws.  The laws can apply to both companies and / or individuals for breaches.

In Australia, the penalty for unlawful discrimination can be up to $63,000 for corporations and $12,600 for individuals and the court may impose other orders for injunctions, reinstatement and/or compensation[AF1] .

Allegations of sexual harassment are serious.  Where an accusation is made a formal investigation by a skilled and experienced investigator is recommended.

Employers must consider: internal policies and procedures, state workplace health and safety legislation, state anti-discrimination laws, federal human rights and equal opportunity laws and federal workplace laws.

The legal test for sexual harassment in the federal Sex Discrimination Act has three essential elements:

  • the behaviour must be unwelcome; unwelcome conduct is conduct that was not solicited or invited by the employee, and the employee regarded the conduct as undesirable or offensive
  • it must be of a sexual nature;
  • it must be such that a reasonable person would anticipate in the circumstances that the person who was harassed would be offended, humiliated and/or intimidated.

A complaint of sexual harassment will not necessarily be dismissed because the person subjected to the behaviour did not directly inform the harasser that it was unwelcome. However, there does need to be some indication from the person’s conduct or the surrounding circumstances that the behaviour was in fact unwelcome.

A case study:

The person works in a large restaurant in the kitchen.  She primarily is responsible for supporting multiple chefs by dish-washing and preparing food.  She works at shared workstations.  At those workstations are photos and calendars with nude pictures of women in various positions.  She is offended by these pictures and has voiced complained to anyone who will listen on multiple occasions.  She states that they have dismissed her concerns and state that it is ‘art’.  She then engages in a campaign of graffitiing the ‘art’ by placing various food products over the offensive body parts and states that her manager is now threatening to sack her if she continues to interfere with the pictures. 

Question?  Could this constitute sexual harassment? And who is the harasser?  A workplace investigation will help you isolate what happened and who was involved to help you make good decisions that are not only compliant but will improve the overall workplace culture. 

The Australian Human Rights Commission has held that in some circumstances, a working environment or workplace culture that is sexually permeated or hostile may also amount to unlawful sexual harassment. A sexually hostile workplace is one in which one sex is made to feel uncomfortable or excluded by the workplace environment, by, for example, persistent comments in a male-dominated workplace that women do not belong or by display of sexual material. This approach to sexual harassment first emerged in Bennett v Everitt where it was held that “[a]ll employees have a right to employment without sexuality or attempts at the introduction of sexuality, either direct or indirect.”9

Bullying

Workplace bullying is repeated and unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety.

It is a risk to health and safety because it may affect the mental and physical health of workers. Taking steps to prevent it from occurring and responding quickly if it does is the best way to deal with workplace bullying.

Bullying can take different forms including psychological, physical or even indirect—for example deliberately excluding someone from work-related activities. It can be obvious and it can be subtle, which means it’s not always easy to spot.

Some examples of workplace bullying include:

  • abusive or offensive language or comments
  • aggressive and intimidating behaviour
  • belittling or humiliating comments
  • practical jokes or initiation
  • unjustified criticism or complaints.

Employees who have been on the receiving end of this type of behaviour could experience symptoms such as anxiety, depression and other physical side-effects. In some cases, it can even lead to an increased risk of suicide.

Workplace bullying can result in a breach of state or territory workplace health and safety (WHS) laws which all businesses have an obligation to comply with.

For employers, the consequences of inaction are significant. Failure to take steps to manage the risk of workplace bullying can result in a breach of WHS laws.  In Heads Up (an initiative developed by Beyond Blue focused on creating mentally healthy workplaces) estimates that workplace bullying costs Australian organisations between $6 billion and $36 billion per year when considering everything from lost productivity, increased absenteeism, poor morale and time spent documenting, pursuing and defending claims.

Reasonable management action taken in a reasonable way is not workplace bullying.  Differences of opinion and personal disagreement are not generally considered workplace bullying.

Conducting workplace investigations is an integral part of a robust strategy to design safe workplaces.  It means that workplaces take bullying allegations seriously, and it will encourage disclosures as well as deter mischievous or vexatious complaints from being made.  

Case Study

Lacey and Kandelaars v Murrays and Cullen

The two applicants were bus drivers and each made an application for an order to stop bullying by their Manager. They alleged that the behaviour engaged in by their manager was unreasonable, including:

  • finding fault with work where there was none
  • raising his voice and being intimidating and turning red
  • hiding in buses in order to frighten the second applicant
  • directing the second applicant to inaccurately fill out his logbook in contravention of fatigue laws, and
  • acting in a confrontational manner with the first applicant.

In total 12 bus drivers, including the applicants, gave evidence complaining about the Manager’s behaviour. The Commissioner found that the Manager had engaged in repeated, unreasonable behaviour and that behaviour created a risk to health and safety. The Manager had bullied the applicants. However, the Commissioner declined to issue an order to stop bullying. He considered that, as the employer had changed the reporting lines so that the applicants would not be directly managed by the Manager, they would not be at risk of bullying continuing. Further, he also considered that the finding of bullying itself would ‘be sufficient to protect Mr Lacey and Mr Kandelaars from the risk of further bullying’.

 

How to start an investigation

While a business can elect to conduct an investigation internally it may backfire where there are perceptions of bias, and / or where the person appointed does not have the requisite skills or experience or time to conduct a thorough investigations.  Additionally, they may not want to be an investigator where they are responsible for making decisions after findings have been made.  There are several benefits to appointing an independent investigator.  Experienced Emverio Workplace Investigators are well-equipped to manage every stage of the process.  They will remain impartial and apply the principles of procedural fairness throughout the investigation. 

At Emverio Workplace Investigations we follow a carefully developed best-practice methodology to investigate a range of issues relating to employee conduct including complaints about discrimination, sexual harassment, bullying, fraud and other misconduct. Your investigation will be conducted promptly, impartially and professionally in consultation with you so that you are able to make robust decision based on fact.

To find out more or discuss your requirements, contact the team at Emverio Workplace Investigations.

This article includes information from the following sources:


[AF1]Can you please reference where you got this information

Can I conduct a workplace investigation by myself?

Complaints or accusations of misconduct in the workplace aren’t always clear-cut.

While your well-considered organisational policies and code of conduct may specify the appropriate disciplinary action to take in a range of cases, choosing the best course of action when it’s difficult to distinguish fact from fiction is easier said than done.

Where an allegation of misconduct has been made but can’t be easily proven, a workplace investigation can uncover factual information to confirm or refute those claims.

If you need to conduct an investigation in your workplace, you may be wondering if you can manage it yourself in-house or if you’ll need to engage an external investigator. The short answer is yes, you can conduct a workplace investigation on your own—however, there are a few risks to doing it yourself.

Here we discuss some of the factors you need to consider before commencing a workplace investigation without the services of an expert independent investigator.

The nature of the allegations

It’s important to consider the seriousness of the allegations being made.

While any allegation of misconduct needs to be taken seriously, some are more serious than others. A simple way to determine how serious the allegations are is to consider:

  • if any laws may have been broken, and
  • the severity of the disciplinary action that may be taken in response to the claims.

For minor misdemeanours where it isn’t apparent that any laws have been broken or the possible disciplinary action that could be taken in response would only be minimal, you may be able to manage the investigation yourself.

Where the allegations are more serious in nature and could result in suspension, dismissal or criminal proceedings, it’s integral that the investigation is rigorous enough to withstand external review if the findings were to ever be disputed.

The skill set of the investigator

To conduct a formal investigation effectively, the investigator will require certain skills.

An investigation typically includes conducting in-person interviews; collecting forensic evidence such as emails, text messages, photographs, computer records, accounting records, timesheets and any other relevant material; documenting the process used and the evidence obtained throughout the investigation; and making a judgement about how well the claims can or can not be substantiated based on the balance of probabilities.

Every element of the investigation needs to be conducted thoroughly and in a way that is procedurally fair to each party involved. If there is any question about the impartiality, transparency or legitimacy of the investigation, any decisions made based on the findings from the investigation may be open to appeal.

To conduct an investigation effectively, the investigator will need:

  • sound knowledge of the Australian legal system and investigative processes
  • superior verbal communication skills to be able to uncover facts and scrutinise comments made during interviews
  • the ability to objectively review and interpret evidence, and
  • excellent written communication and reporting skills to accurately document all evidence and findings.

While an internal staff member may be able to conduct an investigation, it’s integral that they possess the required skills and follow a tried-and-tested methodology that is good enough to withstand rigorous third-party review should the matter be escalated to a court.

The impartiality of the investigation

Every workplace investigation needs to be conducted in a manner that is procedurally fair to each party involved. Where there is any question about the impartiality of the investigator or investigation, there is scope to appeal the findings.

Impartiality can’t always be guaranteed when an investigator is appointed from within the business. If an investigator has a relationship of any description with any of the parties involved, it may raise questions about whether the investigation was conducted in a way that was fair and unbiased.

Where an independent external investigator is used, there will be no question about the impartiality of the investigation as the investigator doesn’t have any pre-existing relationships with any of the parties involved, and they will not have a personal or vested interest in achieving a particular outcome.

Your budget

The cost of investigating a claim is always an important consideration.

While conducting an investigation in-house may initially seem more affordable than appointing an external investigator, it may end up costing more in the long-run.

When you consider the cost of the investigating staff member’s time spent away from their normal role along with the potential for inefficiency in the investigation process due to a lack of skill or experience, the financial cost may be equitable.

It’s also important to consider the potential cost of having to manage and respond to any disputes that may arise about the investigation process. Where the methodology or findings of an investigation are questioned and need to be reviewed by a court, costs can escalate quickly.

How to appoint an independent investigator

Appointing an external investigator is simple when you choose a specialist investigations company like Emverio Workplace Investigations.

When you first engage us, we’ll want to get a general idea of the type of issue you need investigated, and we’ll provide an overview of our investigations methodology and a quote for services.

If you decide to proceed to appoint one of our skilled and experienced investigators, you’ll need to complete a letter of engagement which should include an overview of the allegations and/or complaint, copies of relevant organisational policies and procedures, instructions on who should be interviewed and some other basic details.

At the conclusion of the investigation we’ll provide a report detailing the findings of the investigation, along with an assessment of whether or not the claims could be substantiated based on the available evidence and balance of probabilities. The business can then decide on the most appropriate course of action to take in response to the investigation in line with their organisational policy.

To engage an independent external investigator to conduct an investigation in your workplace, contact the team at Emverio Workplace Investigations.

What is a workplace investigation?

Accusations of unlawful conduct in the workplace need to be taken seriously, but before drawing conclusions about what you think happened, it’s important that the process that you have used to draw those conclusions are procedurally fair.  Why?  Because if you don’t you could find yourself subject to an ‘unfair dismissal claim’.  But broader than that, unfair management decisions has a deleterious impact on your team, its culture, productivity, attracting and retaining staff, health and well-being of individuals and the broader team and increased conflict costs (time, increased insurance costs and responding to claims).

A robust and procedurally fair workplace investigation ensures that managers and decision makers can determine with certainty what further actions are warranted, based on the outcomes of that investigation and demonstrates to your employees that you take their concerns seriously and deal with them fairly.

Before commencing a workplace investigation, it’s important to understand what constitutes a fair process and how to assess any information collected using the civil  standard of proof the ‘balance of probabilities’ so that you can make robust and fair decisions.

When to investigate a complaint.

1.                  Allegations / complaints

Every workplace investigation starts with an allegation or complaint. This could relate to anything from bullying, discrimination or sexual harassment, to fraud, theft or inappropriate behaviour. Sometimes complaints are about other matters such as; management style, someone’s tone or attitude, performance, communication, allocation of work or resources.  When an allegation is made, it’s important that you obtain as much specific detail about it as possible, without forming any conclusions, such as:

  • What actually happened (who did what)?
  • When did it happen (date / time)?
  • Who else was there?

There may be multiple incidents that you will need to investigate.  These form the basis of the allegations.  The more accurate information you can obtain the better decisions you can make about what intervention is the most appropriate.

Who should investigate?

2.            Assess what type of investigation is warranted

You will need to determine whether the allegations are serious enough to warrant an investigation and what sort of investigation you need.  At this stage it is important to refer to your organisation’s policies and processes to assist you to make a decision about whether or not the matter can be dealt with informally, internally or requires an external investigation.

We recommend a workplace investigation where the allegations (if substantiated) would attract disciplinary action or termination.  When considering whether to appoint an external investigator you need to consider the following:

  • ·                     Whether the employee has requested an external investigation,  Employment Tribunals have been critical of employers who have conducted sloppy or self-serving internal investigations (Evans v Ikkos Holdings Pty Ltd and Ythos Holdings Pty Ltd and Ikia Holdings Pty Ltd T/As Pasadena).  The Fair Work Commission has recommended in future, where an employee vigorously asserts that an internal investigation into bullying allegations will lack transparency or independence, it may be prudent for the employer to engage an independent third party to conduct the investigation.  Xiaoli Cao v Metro Assist Inc; Rita Wilkinson [2016] FWC 5592 (19 August 2016)
  • Whether you have the skills / knowledge or experience to conduct a robust workplace investigation internally. 
  • The relationships between co-workers, managers, HR and decision makers that may be perceived as being biased (even a perceived bias can compromise an investigation).  For example, it is best practice that the investigator is not the same person as the decision maker.  The decision maker will determine what further action, if any, is warranted based on the outcome of that investigation.  These are two different functions.
  • The respondent (person complained about).  If the respondent is senior (a Manager, an Executive) or is likely to attract attention in the public, or is a particularly sensitive matter, it may be unfair to ask that someone investigate the matter internally.
  • Your budget.  The larger the organisation the higher the expectation will be that the business has the resources to conduct more robust investigations.
  • Whether the internal investigator’s workload will allow them to have the time to conduct a robust and compliant workplace investigation. 
  • Seriousness of complaints.  For example; if the allegations are substantiated, what would be the worst outcome?  If it is training or counselling, then you might want to consider a less formal approach to deal with the complaints.  For criminal and unlawful matters you may be compelled to report the behaviour to the police or a regulatory agency.  This does not negate your responsibility to conduct your own workplace investigation.  However, the workplace investigator can work with the agency to ensure that they do not interfere with those agency investigations. 
  • How to manage the communications with and manage the complainant (person complaining), witnesses, respondents (sometimes employers also use the words ‘subject officers’ and / or ‘persons of interest’).  When and how to notify participants and what information they are entitled to.  Whether or not to stand people down whilst the matter is being investigated and what to consider when making this decision.

All the above factors will determine whether you choose to engage an external workplace investigation provider or whether you conduct the investigation internally.

How to choose an external workplace investigator?

Currently the licensing regime for workplace investigations is subsumed into ‘private investigations’ which is a State regulated function.  The certification is inadequate and unrepresentative of the core tasks required to be carried out by a workplace investigator (for example; interviewing, the standard of proof, applying principles of procedural fairness, weighing evidence) and significant areas of expertise are missing from the standard Cert IV training and licence requirements.  Certain disciplines have expertise in particular areas, for example; workplace lawyers have an understanding of workplace laws, police officers have expertise in interviewing, HR have intimate knowledge of their workplace policies.  So it can be challenging to find an investigator with specific skills and knowledge to conduct robust investigations with broad skills, without over-capitalising and within your budget.  

Accordingly, having a ‘licensed investigator’ does not mean that you will necessarily be engaging a workplace investigator with the requisite skills and expertise in conducting workplace investigations. 

Overall there is a fragmented and inadequate licensing regime for workplace investigators and there have been calls for a regulatory overhaul (Unsystematic and Unsettled: A Map of the Legal Dimensions of Workplace Investigations in Australia, Adriana Orifici, UNSW Law Journal, Volume 42 No 3, September 2019).

Nevertheless here are some guidelines to assist you to manage your workplace investigations.

3.            When choosing an external, independent workplace investigator it is important for you to consider:

  • Drafting your own Terms of Reference (TOR) or Scope of Works.  The TOR captures details such as what you want the investigator to investigate, the key contact people (usually HR or a senior manager and someone to assist with the administration and logistics of scheduling interviews), the policies you want the investigator to use, who you want the investigator to interview, what sort of findings you want the investigator to make, the investigation methodology / process or templates you want them to use, confidentiality protocols, what you want in the report and any other relevant matters.  If you are engaging an investigator for the first time, ask if they can forward you some de-identified TOR’s that you can use to assist you to determine the Scope of Works.  This is really important to ensure that investigators stay on track and that the investigation has focus and structure. And, that both you and the investigator have your expectations aligned.
  • Communication protocols.  Communication is essential for the smooth delivery of a workplace investigation.  Clarifying the contact point to assist notify employees, provide information and scheduling interviews.  In addition, who the final report goes to.  Who to discuss more material matters with, such as, if the investigator obtains information outside of the scope of the investigation
  • Timeframes.  Ensure that investigator has the capacity to undertake the investigation within a reasonable timeframe. 
  • Methodology.  What methodology do you want the investigator to use?  If you don’t know, ask the investigator for a short summary of the methodology and ask questions if you don’t understand it.
  • Video / audio recording.  As a standard practice all interviews should be audio recorded and independently transcribed.  At Emverio Workplace Investigations all our interviews are conducted online and video / audio recorded. 
  • Editing / drafts.  It is also important to commit to how many drafts you agree to.  Who does the first draft go to for review.  What can / can’t be edited, and how to deal with material changes. 
  • Complaints Process.  Often if you have an independent contractor undertaking an investigation, you have no way to have their work reviewed independently and raise complaints / concerns with.  At Emverio Workplace Investigations we have a National Practice Manager who is always available to address any concerns.

More about Emverio Workplace Investigations

At Emverio Workplace Investigations, we specialise in investigating inappropriate, unlawful or employee misconduct, including workplace complaints about; bullying, discrimination, sexual harassment, inappropriate behaviour and other misconduct.

Our processes ensure that your investigations will be conducted quickly and in a manner that is procedurally fair, enabling you to make informed decisions based on findings which will withstand robust third-party review.

Emverio Workplace Investigations use a national, multi-disciplinary team who work together to provide robust investigation reports, that you can rely on and have the confidence to make decisions, quickly.

Contact the team at Emverio Workplace Investigations to find out more or to discuss your requirements.