The role of the person instructing a workplace investigator is not straightforward. While that person is not directly responsible for the investigation itself, there are many things they can do (or not do) to help ensure that the investigation is demonstrably fair and appropriate. Here are some key points to be aware of if you are in that position.
Appoint an appropriate investigator Finding the right investigator involves identifying a person who is both sufficiently skilled and experienced and sufficiently detached from the subject of the investigation. In Francis v Patrick Stevedores Holdings Pty Ltd, the Fair Work Commission was critical of the work performed by a relatively junior investigator and especially critical of management’s decision to appoint such an inexperienced investigator. The Commission observed that – “[The investigator] had never conducted a disciplinary investigation into allegations of physical assault at the workplace. Her inexperience and lack of forensic skills as to the assessment of witness evidence, was a major contributory factor to the weaknesses exposed in the respondent’s evidentiary case. This should not be seen as a criticism, per se of [the investigator], but rather it demonstrates a failure of senior management to recognise the seriousness of the issues and their causes and a failure to independently assess the investigator’s findings and recommendations. [The investigator] should not be blamed for these failures.” As well as selecting an investigator with the appropriate skills, it is important to select a person who is sufficiently detached form the issues being investigated. If an allegation of serious misconduct is made against a person, the investigator should not be someone who reports to that person or who deals with them every day. Similarly, the investigator should not be significantly junior to any person whose conduct is being investigated. In other words, a junior member of the human resources function is unlikely to be seen as able to objectively assess the conduct of a more senior manager (even if the senior manager is in a different division). Significant challenges to finding a suitable internal investigator may arise when allegations involve the CEO of a corporation or someone in the CEO’s executive team. It may be difficult in those situations to identify anyone within the organisation who could be perceived as bringing a fair and objective mind to the investigation. Give the investigator clear instructions The objectivity of the investigation can also be demonstrated by looking at the scope of the investigation. The scope should show that the investigator is being asked to look at all relevant information and that no attempt is being made to curtail the investigator’s access to potentially relevant witnesses or materials. Ideally, the investigator should be provided with clear terms of reference or instructions that set out exactly what is to be investigated and what issues are outside the scope of the investigation. It may be that, as the investigation progresses, the scope of the investigation will change – with the investigation becoming either narrower or broader. For example, the initial view may be that misconduct occurred on three dates and the investigator may be asked to investigate, and report on, what occurred on each of those dates. After the investigator speaks to the relevant witnesses, it may become clear that the initial scoping was incorrect and the relevant events took place on two different dates. If that happens, then the terms of reference should be amended accordingly. The more common scenario is that the scope of the investigation will expand as evidence is gathered. Again, if that happens, then the terms of reference should be amended. If you cannot show that clear instructions are in place from the outset, then there is a risk that the investigation will not be seen as a genuine attempt to find the truth, but as a stage managed activity designed to produce a pre-determined result. The position of the investigator may be considered analogous to that of the independent expert in civil litigation. In BrisConnections Finance Pty Limited (Receivers and Managers Appointed) v Arup, the Federal Court was very critical of what it is described as a practice that had developed of instructions being issued to experts on the same day as the expert’s final report was issued. The Court suggested that any such instructions could not be taken seriously and observed – "The integrity of the expert evidence process and the independence of experts is best facilitated by transparency in what is being asked of experts prior to, or at the time, they are forming their opinions and, if the questions need to change because they are misdirected, a record being made by way of supplementary instructions as to what has changed.” Make any assumptions explicit In many cases, it will be appropriate to ask the investigator to make some assumptions in conducting the investigation to simplify their task and allow the investigation to be completed more quickly and without the investigator being burdened by uncontroversial issues. For example, it might be appropriate to ask the investigator to make assumptions about the corporate or organisational structure to save the investigator the time, trouble and cost of doing things like conducting ASIC searches. It is important to set out these assumptions at the outset and to ensure that there is a proper basis for the assumptions. If the investigator is asked to assume things that are not, in fact, accurate then this may well derail the investigation from the outset and make any conclusions reached unreliable. As with transparency of the investigator’s instructions, the point of make assumptions explicit is to avoid any suggestions that the expert has been asked to assume certain matters in order to drive a particular outcome. Drawing again on the analogy of the independent expert in civil litigation, a court (or any third party) will be wary of the conclusions in any report if it transpires that they have resulted from unstated or unreliable assumptions. As Justice Heydon explained in Dasreef v Hawchar, “Expert evidence is inadmissible unless the facts on which the opinion is based are stated by the expert – by way of proof if the expert can admissibly prove them, otherwise as assumptions to be proved in other ways.” Let the investigator investigate Once the investigator is appointed and issued with instructions, then it is important for the investigator to be given space to conduct the investigation. That is, in order to be objective – and seen as such – the investigator cannot have their hand held or the activities subject to constant monitoring. If a perception arises that the investigator is not, in fact, conducting an impartial investigation, then that will affect the reliability of any conclusions. Don’t wordsmith the investigator’s report It is not uncommon – and it can be good practice – for the investigator to submit their report in draft form before issuing a final version. This is appropriate provided that the process is only used to correct obvious factual errors, typographical errors or unclear expression. For example, if the draft report states that an office is at 100 Main Street and is later amended to refer to the correct address of 200 Main Street, then that is a reasonable factual correction. Similarly, if the report includes a statement such as “he said to him” and that is corrected to read “Mr Nguyen said to Mr Jones” to clarify which person was the speaker, that is also appropriate. What is neither useful, nor appropriate, is wordsmithing the report - especially editing the investigator’s findings. Even where suggested amendments are well intentioned and their purpose is only to make the report “read better”, they run the risk of coming across as an attempt to put a convenient spin on the outcome of the investigation. Such amendments may undermine the report and put both the investigator, and those proposing those amendments, in a difficult position. If you are in any doubt about whether the proposed amendments cross the line between being corrections or clarifications on one hand and putting a gloss on the report on the other, then you should exercise caution. An example of the issues that can arise in these situations occurred in the recent Financial Services Royal Commission. During evidence from AMP, it emerged that multiple drafts of a key report had been provided to the company before the report was finalised. Both the company’s General Counsel and Chair made comments on the drafts that were adopted, wholly or in part, in the final document. While there was debate about whether the amendments were substantial or purely stylistic, the evidence of redrafting contributed to significant leadership changes at the company. In our view, the key points in relation to the use of draft reports are – 1. Investigators must check their reports thoroughly before submitting them in draft form for final review. Reports should not be provided in “rough draft” on the basis that mistakes will be fixed up in a review and editing process. In particular, investigators should be clear about the precise findings made and how those findings are worded before circulating any drafts. 2. If there are obvious factual errors that need to be corrected, then they should be raised clearly in correspondence. This will help an external person understand why changes have been made if any draft reports are reviewed and compared to the final version. 3. There should be no attempt made to edit the tone of the report – much less the outcome of the investigation.
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