Private investigations: Choosing a workplace investigator

It's a mystery to me, the game commences

For the usual fee, plus expenses

Confidential information, is in a diary

This is my investigation, it's not a public inquiry

I go checking out the reports, digging up the dirt

You get to meet all sorts in this line of work

Private Investigations by Dire Straits

So you’ve decided that your organisation needs to conduct a workplace investigation.  This may be because you’ve received a complaint or grievance, or your gut is telling you that something is not quite right with a particular team or person or group of people.  It may be that if the issues raised are true e.g. sexual harassment or bullying, then this could amount to a breach of your policies, procedures or code of conduct.  Or that you already have legal action against your organisation or threats of legal action.  Or there is a significant effect on other staff e.g. people are fearful of going to work, avoiding certain people, taking sick leave or bringing workers compensation claims.

See our article What’s Up: Do I need to conduct an investigation? about what questions your organisation should ask as to whether an employer should conduct a workplace investigation.

However, before you send someone off to “check out the reports and dig up the dirt”, who should you get to investigate the issue?  What are the considerations an employer should consider when deciding on a particular investigator?

Independence

Is the investigator involved in the incident(s) at all? For example, if there was an incident of groping at a Christmas party, an investigator cannot be someone who was at the Christmas party and witnessed what happened.  They also cannot be someone who was a support person to someone e.g. provided medical assistance or was told about the incident by the person who was involved in the incident.  This independence criteria should also consider not only the particular incident but potentially where this incident may expand.  For example, even if they didn’t witness the particular groping incident at the party, but they were drinking shots with the alleged perpetrator prior to the incident, then they are potentially a witness and cannot be the investigator.

Objectivity

Can the investigator be objective? An investigator’s role is to make findings of fact with integrity and fairness, to facilitate defensible decisions.  They cannot have conflicts of interest, and ideally have no prior relationship with the parties involved.  They also cannot have a stake in the outcome.   For example, it may be difficult for an internal investigator to investigate their own line manager, or  a senior person in the organisation.

Expertise and competence

Does the investigator have the skills and experience to conduct a workplace investigation? Do they understand employment law, the relevant tests that must be applied to certain allegations (e.g. bullying), understand workplace dynamics and understand key issues such as confidentiality, procedural fairness and how to preserve and evaluate evidence? Do they have relevant qualifications – such as legal backgrounds, HR backgrounds, safety backgrounds, law enforcement or investigations credentials – for the particular investigation you are looking for?  Have they attended training and actually conducted investigations previously?

Does the investigator have good interviewing skills? Their role is to put a witness at ease quickly while gathering detailed information.  This is sometimes difficult to do, when a witness is refusing to cooperate, too scared to say anything or is reluctant to provide details.  A good investigator can explain the process and ask the right questions.

Does the investigator have good report writing skills? A good investigation report should explain complex issues in a clear and succinct manner so that a decision maker is able to understand the issues, the basis for the findings and be able to make decisions based on the findings.  The report should be clear and comprehensive, outlining the methodology, findings and if required, clear recommendations that are defensible if challenged.

Timeliness and availability

Often workplace investigations have to be completed quickly to minimise disruption in the workplace and to prevent escalation of issues.  Will investigations interviews be conducted face to face or online? Does the investigator have to travel to a remote site or a different city?  It is important to consider the timeframes required to complete the investigation and whether the investigator is available to complete it within those timeframes.

Cost and budget considerations

All investigations cost something – whether that is an internal investigator’s time or an external investigator’s fees.  Employers should consider budget constraints but also balance the costs of difficult legal issues later – would a thorough, defensible external investigation conducted now save legal costs later?

Summary

And what have you got, at the end of the day?

What have you got to take away?

A bottle of whisky and a new set of lies

Blinds on the windows and a pain behind the eyes

Essentially, an employer needs an investigation report that will be clear, defensible and able to assist in decision making.  The choice of an investigator will make a difference between a useful report and “a bottle of whisky and a pain behind the eyes”.  An employer should consider not only the nature of the issues or incidents raised but the above considerations as to who they will choose to investigate a matter.  The same considerations arise whether the decision is to investigate a matter internally (for example within the HR or safety team) or to have the matter investigated externally.

The investigator you choose can make the difference between solving workplace issues effectively and facing prolonged legal challenges.  Taking the time to select the right person upfront is an investment not only in the integrity of your processes, but also your employee’s trust and ultimately about the workplace culture you want to build – one where problems are addressed thoroughly and all employees feel heard.

Remotely Legal can assist employers and boards on all aspects of employment law, including advising on difficult people issues, reviewing policies and assisting with enterprise bargaining.  Remotely Legal can train your boards and management teams on how to deal with incidents and investigations.  Remotely Legal can also be your fully outsourced HR and people legal team.

RL Investigations, part of Remotely Legal, are a team of highly experienced and qualified lawyers and investigators, who can function as your independent, external investigation team providing fast, comprehensive and reliable investigation reports, workplace culture reviews and suggestions for organisational improvement. RL Investigations can also help your internal HR or investigation team to improve their investigations and assist decision makers in considering the right factors when making key decisions.

This blog is general advice only.  Please obtain legal advice in relation to your specific circumstances.  This blog was written by a human so please seek permission if you wish to copy any of it.