Insights for workplace investigations – AI

This month two of Justitia’s accomplished investigators, Sarah Rey and Ffion Whaley, attended the biennial conference of the Association of Workplace Investigators (Australia & New Zealand chapter) in Auckland.

The AWI’s mission is to promote and enhance the quality of workplace investigations in Australia and New Zealand.  The conference provided an opportunity for professional development, networking and knowledge sharing with colleagues from around Australia and across the ditch.

Attendees were treated to an esteemed line up of presentations from experienced lawyers, barristers and workplace investigators offering international perspectives on:

  • Navigating the impact of generative AI on workplace investigations
  • Collecting and analysing digital evidence
  • Managing difficult parties and witnesses
  • Workplace investigations in the age of psychosocial risks
  • Privacy and confidentiality issues in investigations
  • Investigations involving indigenous peoples and matters

Perhaps unsurprisingly, a key theme that emerged was how AI is impacting workplace investigations, and how (and whether) investigators should be using AI to conduct investigations.  This is a theme which is likely to be of particular interest to Justitia’s clients.

Hot tips for workplace investigators

Eli Makus from Van Dermyden Makus Law Corporation in Sacramento (US) opened the conference by sharing some of his top tips for harnessing the power of generative AI to conduct workplace investigations.  These included:

  • Think about AI as an “enthusiastic but inexperienced junior investigator”.  A more experienced investigator needs to provide significant training, context and prompts to the junior investigator to ensure quality output.
  • Don’t stop checking AI’s outputs.  Jordan Furlong (legal sector analyst, author and advisor) is quoted as saying, “the more often Gen AI gives you correct and useful results, the less inclined you’ll feel to check them”.  This is a trap investigators need to be aware of to ensure consistent quality of their investigations.
  • AI is a tool to support the conduct of an investigation, but should not be used to delegate the investigator’s independent judgement in making findings.  We need to keep front of mind that our work impacts participants’ lives, wellbeing and employment, and that we have ethical, statutory and professional obligations to uphold.
  • Even if you aren’t using AI as the investigator, it is likely that your clients, parties and witnesses are using it.  For example, to draft complaints or responses, manipulate evidence or potentially even to answer questions during an interview!

Evaluating digital evidence

Separate presentations from Johanna Drayton and Jordan Boyle from Dyhrberg Drayton Employment Law in Wellington (NZ), and Caroline O’Connor and Emma Kirkland from Q Workplace Solutions in Brisbane, explored how to evaluate digital evidence in the age of AI.

While it is common for investigators to rely on documentary or digital evidence as direct or corroborating evidence, investigators can no longer take digital evidence at face value.

It is now incredibly easy to use free online tools to create fake messages, chats, or social media profiles, to manipulate the metadata on documents and photographs, or for AI to generate deep fake content.

But an investigator doesn’t necessarily need to be a forensic IT expert (or to engage one) to critically analyse the authenticity of digital evidence. Simple steps to verify the authenticity of digital evidence can include:

  • wherever possible, request digital evidence from the source (such as the company’s IT department where messages were sent over a company server);
  • visually or audibly assess the evidence for strange or unusual features such as misalignment of text, no background noise in a video or audio recording or pixelated images;
  • always give parties an opportunity to respond to adverse or conflicting digital evidence, and to provide their own copies of the evidence; and
  • corroborate digital evidence with other independent sources.

The insights regarding AI from the conference are far too numerous to summarise here.  We welcome the opportunity to continue the conversation about key trends emerging in the field of workplace investigations with our clients. For more information contact Ffion Whaley, Senior Investigator and Lawyer, at info@justitia.com.au.

Congratulations and thank you to the AWI conference organisers and speakers for an engaging and thought-provoking conference.