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Knowing how to partner with an external workplace investigator is essential in order to ensure a thorough process which is fair for all involved and doesn’t result in breaches of law.

Recognise different roles

As external investigators we regard our professional integrity as precious. Our impartiality is paramount in managing our investigations. While ongoing communication with our client is an important part of our process, we think it is important that there is a clear separation between the organisation and the investigator.

The importance of this was emphasised in a case involving Visy (Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Pty Ltd (No 3) [2013] FCA 525).Visy decided to engage an external investigator, ostensibly to provide impartiality. However, the criticism of the Federal Court was that the investigation occurred under ‘Visy’s guiding hand’.Evidence related to the investigation showed that Visy managers helped to frame the questions that were asked, sat in on the interview with the respondent and may have sought to have the final report revised in order to strengthen it. The Federal Court did not consider the investigation or the decision maker to be ‘independent and impartial’. The result was the overturning of the original dismissal and fines to the organisation and one of the managers involved.

The way we work will ensure that we have discretion over the investigation and conduct the process in an impartial manner.

Establish suitable terms of reference

When engaging with an external investigator it is also important to begin by establishing terms of reference that balance the need for a clear scope with flexibility to consider further, related allegations that may arise during the process. It is important that a single investigation does not snowball into a series of unrelated issues but sometimes an investigation will uncover further concerns that relate to the matter at hand. Appropriate terms of reference and investigative process will allow for these to be considered and pursued where relevant.

We also believe we have not done a complete job with our investigations if we haven’t considered the bigger picture. That is, while our investigations deal directly with allegations and incidents, we like to consider broader factors such as workplace culture, apparent training needs and other underlying causes or possible remedies. We like to ensure our terms of reference permit us to do so.

These guidelines will ensure we can work together to achieve the outcome of a successful and rigorous investigation that is not only sustainable under challenge but considered fair by all those involved.