What you need to know
- An employer has a duty to investigate alleged misconduct and to do so in a procedurally fair and impartial manner. While this is easy to say, it is much harder to assess and plan for on the limited information that is usually available at the start of an investigation.
- Impartiality starts with the person an employer chooses to conduct its workplace investigation.
What you need to do
- Ensure your organisation has processes in place, similar to those below, to properly assess the selection of an internal investigator.
- You may want to prepare and distribute a checklist of 'considerations when appointing an investigator' to ensure all business units carefully consider these practical issues before appointing an internal investigator.
- Capacity and skill are not the only criteria to consider.
Why is this an issue now?
A recent unfair dismissal case before the Fair Work Commission involved a workplace investigation run by an internal investigator who had a potential conflict of interest regarding the outcome of the investigation. This provides a timely reminder of the importance of employers taking the time to carefully consider who will run a workplace investigation for the organisation.
Choosing the right internal investigator
Procedural fairness requires impartiality in the conduct of a workplace investigation. That impartiality starts with the person an employer chooses to conduct its investigation.
The investigator must not have:
- actual bias, which means they must not have, or be seen to have, prejudged the case against the respondent employee; or
- apprehended bias, which may arise where there are questions as to their independence or impartiality.
In some circumstances, it may be difficult for an employer to be certain who is best placed to conduct an investigation if there is little information available at the outset of an investigation.
Some considerations to keep in mind include:
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Do the allegations involve unauthorised work-related conduct?
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Where allegations raise issues as to whether the respondent employee had authority to take particular action, we suggest that direct supervisors should not be involved in the investigation process.
This is because the direct supervisor may become a relevant witness. |
| Do the allegations raise technical issues regarding the respondent employee's role? |
If so, consider choosing an investigator within the business who understands the technical aspects of the allegations. |
| Do the allegations raise potentially systemic issues within a particular team within the organisation? |
If so, this may suggest that the investigator should be someone external to that team, in order to avoid a potential conflict of interest. |
| Who are the parties to the investigation (respondent, complainant, possible witnesses)? |
If a proposed investigator has professional or personal relationships with any of these people, closely consider if their appointment could withstand an accusation of apprehended bias. |
You may want to prepare and distribute a checklist of considerations to ensure all business units carefully consider these practical issues before appointing an internal investigator.
Would an external investigator be more appropriate?
If a formal investigation is required and your answer is yes to any of the following, you should strongly consider engaging an external investigator to conduct that investigation:
- Have allegations been made against senior management or several parties within the organisation?
- Would an internal investigator reasonably be seen to be biased?
- Does your internal team not have sufficient skills, experience or resources to conduct an investigation?
- Has there been a breakdown of trust in the employment relationship between the employer and the respondent employee?
Engaging a qualified external investigator will also assist in ensuring the investigation conducted will withstand any subsequent scrutiny by the courts and tribunals.
Authors: Trent Sebbens, Partner; Shannon Chapman, Counsel; Amanda Wu, Lawyer; Jade Costigan, Lawyer.
