What to expect from a workplace investigation

31 Jan 2020
Author: Leon Arcus
 
To be effective, workplace investigations must navigate employment law obligations and the rights of multiple parties. They must be impartial, fair, balanced and result in conclusions based on reasoned facts. For many employers faced with serious allegations in the workplace, the time, resourcing and expertise required to undertake a fair investigation is beyond what they can provide and they are wise to engage an external investigator.

The Association of Workplace Investigators (AWI) provide the only internationally recognised standards for investigators, and offer the ‘gold standard’ of accreditation for recognising competent, qualified workplace investigators.

The AWI’s Eleven Guiding Principles provide a certainty to all parties involved in investigations about how they may expect an investigation process to proceed:

Principle 1 - Decision to Conduct an Investigation
If a complaint is raised, or an employer becomes aware of information that gives rise to serious concern, this should be investigated. The first consideration will be whether a lower level enquiry and action is appropriate. Employers should be asking how the employee would like their concern dealt with. This may include the individual approaching the alleged perpetrator in the first instance (if this is their preference). There are risks in this approach, and while an employee may wish to have power over that process, there are many considerations for an employer, including any power dynamics involved, and ensuring that the employee does not feel pressured into ‘going it alone’. Training of those who will be likely to first to receive a complaint in how to deal with a disclosure is essential. In making a decision to investigate, employers should be guided by a clear policy, that provides certainty about the investigation process.

Principle 2 – Choice of Investigator
An investigator should be impartial, objective and competent in their ability to undertake an investigation in a timely manner. Often the easiest way to achieve these requirements is to engage an external investigator. Investigators will be free from the managerial and executive hierarchy of the organisation and consequently possible influence. However, employers are wise to do their homework to ensure that the individual engaged is qualified, experienced, and capable of performing the work required. This may, for example, include consideration of whether the investigator is able to use a trauma informed approach, where sensitive allegations are made.

Principle 3 – Scope of the Investigation
The scope of the investigation should be determined by the employer and in agreement with the engaged investigator. Clear Terms of Reference will guide all parties as to what to expect will be “within scope”. Investigations will require findings of fact regarding specific circumstances alleged, but may also include conclusions regarding whether or not the alleged behaviour amounts to a type of conduct, such as bullying, and/or whether this may be inconsistent with an employer’s terms of employment or policy.

Principle 4 – Investigation Planning
An investigator will undertake planning including documentation and information required, information to be provided to witnesses, and simple logistics regarding witnesses (such as who will be interviewed, where, and in what order).

Principle 5 – Communication with Employer and Witnesses
Terms of Reference will usually also refer to the process by which an investigator will communicate with parties involved in the investigation, to minimise communication with the employer which may create perceptions or allegations of influence.

Principle 6 – Confidentiality and Privacy
Investigations should be undertaken with respect to the privacy and confidentiality of those involved. Natural justice dictates that in any investigation, a person accused of wrongdoing should not be presumed “guilty”, simply by virtue of allegations being made – quite the opposite. Serious allegations have the potential to damage reputations, and while external investigators are not under an obligation of good faith, they will be mindful of the engaging employer’s obligations of good faith, as required by the Employment Relations Act 2000. Investigators should be acting consistently with these.


All parties should be made aware of their responsibility to keep the investigation confidential to allow for a fair and balanced process to take place, and that the process and its outcomes are not undermined by premature and unreasonable disclosures by participants.

Principle 7 – Evidence Gathering and Retention
Information gathered will need to be both within the scope of the investigation and the law (e.g. privacy obligations). This may involve consideration of policies, law, the allegations made, the costs of gathering that information and the ability to retain it in a way that protects the confidentiality and integrity of the investigation.

Principle 8 – Witness Interviews
Witness interviews should be undertaken in a safe, private environment, allowing witnesses the opportunity to respond in full. Natural justice dictates that an individual alleged to have committed wrongdoing should be given all information relevant to those allegations, including witness statements. Requests for information can be refused under the Privacy Act 1993 (section 29(1)(a)) only where there is reason to believe the disclosure of such information would be an “unwarranted disclosure of another person’s affairs given the circumstances.” Directions as to the expectations of privacy and non-publication of information obtained during an investigation (i.e. the prohibition of publication to third parties, including on social media) can (and should) be issued by an investigator.

Principle 9 – Investigation Documentation
Investigators will keep accurate records and documentation. This will provide a clear trail of evidence when conclusions are given, allowing for all parties to the investigation to understand clearly, how the findings were settled upon.

Principle 10 – Investigation Findings
Findings will be within the scope of the investigation agreed upon, i.e. the Terms of Reference. Conclusions reached by investigators will be determined by the appropriate burden of proof, i.e. whether the allegation is established on the balance of probabilities (as opposed to the criminal standard of beyond reasonable doubt).

Principle 11 – Reports
Reports into findings will ordinarily be provided in writing, including a summary of the scope of the investigation; the process undertaken; discussion of the evidence gathered; identification of any policies or law involved; and statements of findings and conclusions. Where Terms of Reference allow, investigators may also be asked to report on recommendations for the employer, and/or recommendations for the introduction/amendment of workplace policy, or observations such as concerns regarding institutional culture.

Workplace investigations can be inherently stressful for those involved. The AWI Guiding Principles regarding the way in which workplace investigations should be conducted, provide an international best practice framework, from which trained investigators operate. This gives certainty to those involved, and enables a full and fair investigation to be undertaken, which is in the best interests of all involved.

Director Andrea Twaddle, holds the international qualification the Association of Workplace Investigators Certificate, and leads the team of employment law specialists at DTI Lawyers, who can assist parties by undertaking workplace investigations, or guiding them through the process.



 

For more information about the Association of Workplace Investigators, see www.awi.org

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What to expect from a workplace investigation
About the Author
Leon Arcus
Leon Arcus is a Law Clerk at DTI Lawyers, Hamilton.