Why and when you should appoint an independent investigator for workplace behaviour investigations?

04 November, 2020

We often see Employers having to deal with very sensitive and toxic workplace grievances.  They also have the legal and corporate responsibilities when faced with allegations of inappropriate or unlawful behaviour/conduct.

An Employer’s risk in terms of future claims (whether in the form of unfair dismissals, stop bullying orders, workers’ compensation, etc) increases if they do not conduct a thorough and balanced investigation in accordance with their stated policies & procedures.

Employers may not be in good position to defend future claims if the investigation did not provide all parties with:

  • Reasonable opportunities to respond
  • Procedural fairness
  • A well-defined purpose and scope of the investigation
  • Strict privacy and confidentiality of the investigation process, including potential disciplinary actions should they breach confidentiality
  • Confidence that all records of the investigation process are maintained in a secure manner

The recent changes to the whistleblowing protections under the Corporations law and the related ASIC Guideline 270 has increased the obligations of Employers and senior executives in the private sector in the investigation of complaints and whistleblowing reports as a result of bad behaviour and misconduct.

Other than the importance of the complaint being investigated in a timely manner, one of the Employer’s initial critical decisions when faced with the need to conduct a workplace investigation is whether to use internal resources such as HR or instruct an independent external investigation expert.

What are the key factors which often lead to a decision to appoint an external investigator?

1. The matter is complex with multiple serious allegations requiring a level of expertise not available internally. In the 2017 Fair Work Commission (FWC) matter (Anthony King v The Trustee for Bartlett Family Trust T/A Concept Wire Industries [2017] FWC 3867), the Employer’s decision to appoint an external investigator was critical.  The Commission described the investigation of the bullying complaint as a “meticulous and balanced investigation process”.

2. The Complainant or Whistleblower has specifically requested for an independent In the event that the findings of the investigation are subject to external or public scrutiny, it may be difficult to defend the independence of the investigation process if the Complainant’s request were ignored.

3. From a perception of conflict of interest (and “perception” is reality in this space), any allegations involving senior executives and board members, should be investigated by independent experts.  In our experience, Boards will be in a better position to demonstrate that they have followed best practice in such circumstances.

4. A basic governance test to apply, especially if the matter is exposed in the media, will the appointment of an internal investigator pass the “pub test”?

5. The new whistleblowing legislation under the Corporations Law provides avenues for Whistleblower to make an “Eligible” report to the media should the organisation fail in their obligations in a timely manner. From a risk management perspective, if you can foresee the Whistleblower going to the media and well conducted independent investigation will reduce the organisation’s reputational risk.

Ultimately, whether there is a future liability or reputational damage down the track, the Employer needs to demonstrate that the investigation was thorough, impartial and procedurally fair.

 

Vincent Quattropani
Founder & Managing Director
Clarity Workplace Solutions