Christian Horner, Red Bull F1 team principal and CEO of Red Bull Racing, was the respondent in a workplace investigation that involved 50 allegations of inappropriate workplace conduct and poor managerial practices made by a female employee. Horner denied all the allegations and the final report ultimately found them unsubstantiated. This coincided with the onset of the new F1 season.

Workplace investigations are becoming increasingly commonplace (and more complex) in what can be a fast-paced, pressured decision-making environment, whether you work in the corporate or government sector. Such investigations can quickly become media spectacles, affecting the reputation of even the most prominent organisations and the most innocent of participants.

Drawing from Christian Horner’s high-profile case and recent decisions of the Fair Work Commission in Australia, here are ten reminders of how to keep a complex workplace investigation on the rails.

1. Act quickly:

  • Swiftly triage the allegations. Potentially triage the more serious ones, or the ones able to be easily proven/disproven, to determine next steps.
  • Consider whether to start with a preliminary assessment.
  • Identify key stakeholders and keep them informed.
  • Consider whether the process put in place is proportionate to the issues being investigated.

2. Identify and follow established guidelines, policies, awards, and/or enterprise agreements:

  • This is crucial for maintaining the integrity of the investigation.
  • Typically, these documents will outline the road map for the process, therefore carefully consider any reason for deviating from them.
  • Consider whether or not it is necessary to suspend a respondent to allegations at the commencement of the investigation, and it should not be a kneejerk decision.

3. Engage experts:

  • Consider the need for external advice, such as forensics experts or language interpreters.

4. Conduct interviews with relevant witnesses and document comprehensively:

  • Consider carefully how evidence from interviews should be captured. There are different options, which may affect how to ensure a more ‘trauma-informed’ approach.
  • Maintain detailed and accurate records of every step in the investigation process including the creation of a timeline, and a running filenote of all developments, to capture the order of decisions and actions.

5. Address psychosocial hazards:

  • Ensure a supportive environment for all participants affected by the investigation. For example, conduct in person meetings when providing documents that have consequences for that person; provide advance notice for key communications and meetings; look to provide agency to investigation participants, where possible.
  • Be sure to report back to your instructor where participants display any signs of distress or risks to their health or safety.

6. Maintain constant communication:

  • Keep open lines of communication with the complainant and respondent throughout the investigation.
  • Provide regular updates to relevant stakeholders on the progress and expected timelines.
  • Make sure there is a support person nominated by the organisation (who might be separate to the party’s chosen support person) who regularly checks in (e.g. weekly) with the party.

7. Procedural fairness:

  • Establish clear timelines to ensure the investigation progresses quickly, and investigators/instructors are accountable, while maintaining thoroughness and accuracy.
  • Consider when contradictory evidence may need to be presented to a party for their further response, particularly where there is a prospect of adverse findings being made.
  • Allow sufficient time for responses and always provide the option for support persons.

8. Confidentiality:

  • Emphasise the importance of confidentiality to all participants, and where appropriate, outline the consequences of any breach.

9. Inform the stakeholders and where appropriate, share the investigation plan/timelines:

  • Depending on the circumstances, the CEO may be actively involved through their ongoing oversight or decision-making role, and the Board directors may need to be informed.
  • In high-profile cases, prepare for external communication through the engagement of other experts (e.g. PR), including engagement with the press and media, or wider stakeholder community.
  • Establish regular meetings to obtain updates and discuss impacts on parties/stakeholders.
  • Consider legal and ethical matters around the investigation.

10. Be clear on who the decision maker is:

  • Be clear on the purpose of the investigation, who is being engaged to conduct the investigation, and who they are reporting to.
  • Ultimately a report is prepared to help a decision-maker make decisions. They should be impartial, should consider the report carefully, and satisfy themselves of the information contained in the report. The decision maker may have further questions, or need to satisfy themselves of additional matters, before a final (unrushed) decision is made.
  • Where appropriate, lawyers will have been engaged prior to the commencement of the investigation, in order to ensure they can provide legal advice to the organisation during and after the investigation.
  • If lawyers are not retained from the outset to engage the investigator, then legal professional privilege is not likely to apply to the investigation report.
  • Ultimately, an effective investigation should assist the decision maker (and their organisation) to make appropriate decisions which do not breach laws, industrial instruments or organisational policies. For example, the respondent will need to be afforded procedural fairness during any process that affects their rights.

How Justitia can help

At Justitia we can provide you with:

  • Advice about whether to investigate an allegation or issue, and how to set up the investigation.
  • Training for your in-house investigators – Click here for more.
  • Investigation services, provided directly to you or to your lawyers.

For more information about this issue or for help with any of the above, contact info@justitia.com.au