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Top 5 Tips to Assist with Workplace Investigations

Date: 17 October 2018

Labour, Employment and Workplace Safety Special Counsel, Miriam Power shares the top five tips to assist with workplace investigations. 

Workplace investigations are increasingly scrutinised by tribunals and courts to determine fair process or discharge of employer's duty of care.

To minimise risk of an adverse review, here are five critical elements of a workplace investigation. 

  • Define the scope and protocol - A good scope and protocol document will: 

    • set out relevant background facts
    • comply with any binding process in an Award, enterprise agreement, employment contract or policy
    • determine facts to be investigated and for what purpose - if for the purpose of seeking legal advice, investigation materials may be subject to legal professional privilege
    • identify complainants, respondents and witnesses
    • identify other sources of evidence like documents or electronic communications
    • determine recipients of any investigation report and identify any external reporting obligations.
  • Appoint a suitable investigator and case manager - An investigator should be impartial and appropriately skilled. A case manager liaises between the investigator and participants, and should not be a decision-maker.
  • Communicate with transparency to all participants - Inform all about the process, timing, available support and obligations of confidentiality and truthfulness. Provide respondents with particulars of any alleged facts, and copies of any relevant materials and policies. Upon conclusion, provide complainants and respondents with an outline of findings.
  • Collect and retain credible evidence - Determine how evidence from participant interviews will be recorded and develop a retention protocol.
  • Have a demonstrable and reasonable basis for any finding - Connect any substantiated finding with evidence. Competing oral evidence should be corroborated from another source or the rationale for lesser or greater weight applied explained.

A thorough, fair and reasonable investigation process is the employer's best defence to claims from disaffected participants.

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