Businesses are facing increasing demands to investigate issues arising with employees, contractors, clients and visitors. A slew of recent decisions by various courts and commissions, as well as the rise of protected disclosures being made under whistleblower laws, have underscored the risks of getting an investigation process wrong. Those increased risks have placed further demands on businesses to broaden the number and depth of investigations being undertaken into conduct.
What can we learn from recent decisions that have considered investigations?
2024 has seen many decisions being handed down that have reviewed investigations undertaken by business including investigations by employers into allegations of misconduct against employees.
Those decisions can be distilled into the following principles:
- Before relying on the outcome of an investigation, you should allow the respondent to the investigation the opportunity to respond to the likely findings before making a potentially adverse decision based on the investigation findings;
- When putting allegations to a respondent in an investigation, those allegations need to be sufficiently precise so that the individual responding to the allegations can identify the conduct and respond;
- Investigations should be completed promptly and without undue delay;
- Investigation materials put to a respondent for response should not be unnecessarily redacted;
- Beware an allegation of prejudgment of an investigation outcome by taking pre-emptive steps that may look like a decision has been made about the outcome of an investigation before all of the evidence has been considered;
- Do not take pre-emptive steps against a respondent to allegations that are adverse to that person’s employment or legal rights;
- The person in charge of the investigation should not be the person who makes the decision on the outcomes from an investigation – do not be the “judge, jury and executioner”;
- Investigation outcomes should be promptly, clearly and fulsomely communicated to the complainant/s and the respondent/s;
- Investigators must consider all relevant evidence and test the evidence to ensure the evidence being relied on is proven and sufficient;
- If an adverse outcome is to be delivered to a participant in an investigation, the individual attending the meeting should be forewarned about the nature of the meeting and not ambushed; and
- It is not a requirement of natural justice that a copy of the originating complaint or the investigation report be given to a respondent in an investigation before action is taken in reliance on an investigation report (such as a show cause process and subsequent termination of employment).
Whilst many of the above decisions related to employment investigations, these principles are equally applicable to investigations that do not involve an employment relationship, including public conduct and alleged criminal activity.
Making complaints through whistleblower reporting channels is making investigations more complex
It is becoming increasingly common for employees and contractors to submit personal grievances against colleagues and business associates using whistleblowing channels available through their employer, in the belief that doing so will afford the employee confidentiality and protection from retaliation by the respondent/s to the complaint.
The practical effect of individuals using whistleblower channels to register such complaints is that:
- proper and timely investigation can be seriously stymied; and
- the employer can be at risk of breaching whistleblower protection laws if they inadvertently disclose the identity of the complaint in their attempt to establish if whistleblower laws apply to the disclosure.
Implications for businesses
Businesses are facing increasing demands on their people and culture, safety and legal teams to investigate complaints and incidents arising in the workplace and in their commercial relationships.
The number and complexity of investigations employers are expected to complete is only increasing, and tribunals and courts are often critical of processes that are found to be unfair, are lacking in transparency or that take too long. Businesses face the risk of employees being reinstated, findings being made in public forums about governance and their practices being publicly criticised if they get it wrong.
How can we help?
HWL Ebsworth undertakes comprehensive investigations on behalf of clients who do not have the capacity or expertise to complete them in house or when conflicts of interest arise, such as a complaint being made about a member of the Board or in house legal team. We can conduct these investigations under legal professional privilege and provide advice on the outcomes arising from the investigation process. For complaints made using whistleblower channels, we can assist with navigating those laws that can result in personal penalties
We regularly undertake investigations relating to sexual harassment, safety incidents, bullying, misconduct, criminal conduct, theft, embezzlement, whistleblowing, public interest disclosures and governance, as well as deal with professional regulatory investigations on behalf of clients.
This article was written by Danielle Flint, Partner.
