Getting workplace investigations right

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Agenda

Decision to investigate

• Evaluating complaints: when to investigate, when not to
• What if the complaint is anonymous?
• Alternatives to formal investigation

Establishing the investigation

• Who should be the decision maker?
• Getting the terms of reference right
• Selecting and briefing the investigator

The investigation process

• Managing the investigation
• Interviewing witnesses – asking the right questions
• Balancing confidentiality with natural justice
• Document creation and document control
• Managing expectations

Finalising the investigation

• How to deal with conflicting evidence
• Writing good reports
• Communicating decisions

Implementing outcomes

• Decision maker’s checklist
• Use of investigations report – disciplinary procedures
• Communication of outcomes

Particular issues

• Requests by witnesses to have support person or legal representation: what rights do witnesses have?
• Requests to tape record interviews
• Reluctant or anxious complainants: how to protect them and still ensure fairness
• Criminal offences: what rights do suspects have?
• Should you tell the police and can you proceed if they are involved?
• EEO complaints: what if there is an external complaint as well?

Legal principles

• Natural justice – in the investigation and in future disciplinary processes
• Policy and industrial instrument compliance
• Limitations on surveillance activity – emails, computer records, phone records and video surveillance?
• Legal professional privilege: when is it relevant, how to get it and how to maintain it
• Confidentiality
• When does the Privacy Act apply?
• Defamation
• Public sector investigations: legislative obligations and whistleblower protection
• Potential legal claims – vicarious liability