Workplace Investigations: Pitfalls & Risks
From time to time, it is appropriate for employers to conduct a workplace investigation, particularly when they are faced with employee grievances. While the approach or methodology used may differ between each investigation, any investigation, whether done internally or through an external investigator, should be done sensitively, impartially, and in a timely manner, to minimise risk to the business.
“The purpose of a workplace investigation is to determine whether an employee has engaged in any wrongdoing, usually involving a breach of a workplace policy or procedure. This can then guide a business on what action, if any, should be taken.”
When to investigate
An investigation is usually initiated following a workplace complaint or where the employer is made aware of suspected misconduct. Circumstances in which an investigation may be appropriate include:
where wrongdoing, or a breach of policy or procedure, has allegedly occurred where an informal response would not be appropriate;
if a policy mandates an investigation in certain circumstances; and
to make appropriate, informed decisions, particularly if there is risk that an outcome could be challenged e.g., through Fair Work proceedings or other legal proceedings.
Depending on the nature of the alleged wrongdoing, an investigation may be appropriate, in which case it is important that the matter is correctly managed and risk is mitigated from the outset.
Risk from poorly executed investigations
A poorly executed investigation, whether the investigation is conducted internally or by an inexperienced external investigator, can expose a business to a number of risks, including:
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Decisions may be made based on inaccurate findings, leading to inappropriate outcomes
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Including unfair dismissal, general protections and workers’ compensation.
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A poorly executed investigation can lead to a loss of trust, particularly if there are breaches of confidentiality or conflicts of interest, which can negatively impact workplace culture.
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Particularly if the matter must be ‘re-investigated’ or a decision is successfully challenged.
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Increased risk of psychological injury to those involved, particularly if there is a protracted investigation or breach of confidentiality.
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Increased risk of unnecessary costs, particularly if an inexperienced external investigator is used and the scope of the investigation is not clearly defined and managed.
When should you appoint an external investigator?
There are some cases in which an internal investigation may not be appropriate, and an external investigator should be engaged. These include:
where there is significant legal, operational, or reputational risk to the business;
if there are concerns about impartiality or a conflict of interest (whether these are actual or perceived);
where the investigation involves senior level employees; and
where the business does not have the required skills or resources to conduct an appropriate investigation.
Not all external workplace investigators possess the same level of expertise and professionalism. Therefore, businesses should ensure they engage an external investigator who is suitably qualified and has the necessary expertise and experience to be able to conduct investigations effectively and minimise potential risks to the business.
In Western Australia, consultants that offer investigative services (who are not legal practitioners) must be licensed with WA Police.
Norfolk Workplace Consulting - Your External Investigator
Norfolk Workplace Consulting’s experienced and licensed investigators can help you navigate the risks associated with disciplinary matters. Our investigators offer independent, thorough workplace investigations, ensuring that your sensitive workplace matters are handled with professionalism and integrity.
Due to our significant experience, we are able to clearly define and manage scope, and are more efficient throughout the investigation process, resulting in a more commercial outcome for our clients and avoiding unnecessary additional costs for them.
Backed by employment lawyers
Our sister company, Pragma Lawyers, can engage Norfolk Workplace Consulting so that the investigation we conduct subject to legal professional privilege. This approach provides a cost-effective solution for workplace investigations with a high level of risk while maintaining protection for your business. Norfolk Workplace Consulting can also work with your business’ appointed or in-house employment lawyers.
Download our capability statement
If you’d like to find out more about the investigation services we offer at Norfolk Workplace Consulting, download our Investigation Capability Statement or contact our team.