We try to keep our clients briefed about developments in all workplace law areas, and one in which Justitia has been active this year involves workplace investigations. So it is time for an update.
Increasingly, we have been assisting clients negotiate complex misconduct issues, where an investigation was necessary due to either the seriousness of the allegations or because a formal complaint was made under the organisation’s complaints procedures.
Justitia lawyers have also been busy carrying out investigations for other law firms. In most cases this request came about due to the seniority of the parties involved or the regulatory environment, or both, requiring a formal, careful, well-reasoned approach. Engaging lawyers does not necessarily mean that as a matter of course legal professional privilege will apply to the confidential report produced, but if set up correctly, then this can be an important way for an organisation to manage a challenging set of circumstances.
Justitia’s investigation experience continues to be enhanced due to the appointment of three of its lawyers as lecturers on the subject of investigations law. At the University of Melbourne (Sarah Rey and Laura Douglas) and Monash University (Joanna Betteridge) respectively deliver courses to Masters level students.
In addition to lecturing, some of you will know that Justitia has been an active and keen participant in the establishment the Australian chapter of the US Association of Workplace Investigators (AWI). Sarah Rey was this year appointed a director of the AWI and attended their annual conference with 220 other investigators from Australia, the US and Canada in October.
The conference programme was described as the best to date, and topics ranged from – the techniques required to interview people with trauma – to a Canadian academic sharing research into the secondary (more severe) trauma complainants suffer when their complaint is not taken seriously by their employer, Church or university – referred to as institutional betrayal.
The Americans (unlike Canadians) have a different approach to investigations compared to Australia. For example:
• Americans do not need to provide allegations to respondents prior to meeting with them. They prefer the “gotcha approach” to seeking out wrong doing. For example they have no problem starting an interview with a respondent with the words “you know why you are here, don’t you?”;
• They do not have to grapple with the concepts of “procedural fairness” in the same way we do in Australia;
• Their investigators are frequently asked to give evidence – either in relation to their own investigations or as experts. Investigators who are put in the witness box will be asked about their experience and training, and membership and accreditation through the AWI in the US increases their credit;
• In cross examination, questions will be asked about how many investigations have been carried out by the investigator for that employer, in order to infer that the investigator is beholden to the organisation and therefore may be biased;
• More frequently than not, investigations will not be conducted under legal professional privilege, because the employer will seek to rely on the investigation report; and
• In the US bullying laws are in their infancy, and hence most employee claims need to include some element of harassment or discrimination, in order to encourage an employer to formally investigate and take their claim seriously.
The US conference was quickly followed by the Australian chapter’s conference in Melbourne this October. Being an inaugural event, it was interesting to see attendees from all across Australia. There is clearly a need for an association for workplace investigators and an opportunity for them to share experiences and knowledge.
Speakers included a former Federal Court judge, a Fair Work Commissioner and a senior lawyer from a plaintiff firm, who were each provocative in their own way, challenging the audience to reflect on their practices. Other speakers, all investigators in the field, presented on:
• the current thinking on taping of interviews;
• avoiding unfairness through lack of notice to parties about investigation interviews;
• the role of investigation reports in Fair Work proceedings; and
• how an investigator should avoid being an agent or tool of their instructor.
A more detailed conference report can be found on the AAWI website.
If you are interested in talking to us about your workplace investigation requirements, or what Justitia has to offer in this area, please don’t hesitate to contact us.
Sarah Rey is Managing Partner at Justitia. To view Sarah’s profile, click here.