The resounding case for the independent investigator

Tanya Hunter
July 10, 2019

The case-law is now increasingly crowded, when it comes to scenarios where there was a less than independent investigation conducted into allegations of workplace misconduct.

Investigators, whether internal or external, must act independently throughout the investigation process. Too often, however, they do not. We therefore thought it timely to set out some key ways in which you can help minimise the prospect of any possible or actual bias occurring when you next investigate, or instruct an investigator to do so!

Judging on irrelevant past behaviour

So often, investigators make up their mind about whether a respondent has conducted themselves badly, based on irrelevant reliance on “prior form”. This is a very slippery slope, and an all too common one. Just because someone may have been found to have been discourteous in a team meeting three years ago, does not mean that they are then, on a more recent occasion five months ago, inherently guilty of claiming overtime they are not entitled to. Moral judgments have no place when forensically examining evidence to make findings of fact.

There is only one exception here, and it is not really an exception, as it is where past behaviour is or evidence of past behaviour is actually sufficiently relevant to consider. Specifically, only where there is a strikingly similar set of previous circumstances (for example, evidence of yelling at subordinates during “team building”) which indicates a clear pattern should one only then take that into account in deciding whether the same type of allegation (that is, yelling at subordinate A during “team building” day X) has occurred or not.

No commentary please, we are investigators !

Regardless of what you may genuinely be thinking as to how reliable, sound or solid someone’s evidence is at interview, (or the opposite thereof), do not get “in front of the camera”. Sometimes, in a mistake to allay nervousness, build rapport with an interviewee, or just thinking out loud, an investigator may comment on evidence provided.

In one memorable case, in response to an actual question by the complainant as to whether her evidence was in essence sufficient, the investigator commented, “no, that all looks good”, basically indicating he was in agreement with the complainant in real time.

How will this look?

Even if you think, as an internal investigator, that you are able to successfully avoid committing the above two errors, there is still always the perception of bias. Unless you are extremely new to a workplace, then either because of your role, as a manager, or as HR, and/or because of your longevity in the organisation, or for other reasons reflective of your social circles at work, you will not have what they say is a clean slate, or tabula rasa. You may indeed be already well aware of the “back story”, legacy issues, unfinished business or privy to certain sensitive information, and which at least one of the participants is also aware of. It may be that the actual subject matter of the investigation is no surprise to you, or that, possibly, this is not the first time that you have investigated such subject matter which involves at least one, if not more, of the current participants.

Even if is in fact part of your role to conduct investigations, sooner or later, if you are known to know where “the bodies are buried”, or people perceive that you are privy to such sensitive information on people’s history at the workplace, you will possibly be seen as “too close”. Regardless of whether you think that you are able to remain objective and independent, this is a real “risk area” for an internal investigator.

It is vitally important to weigh up the risk of undertaking an investigation in the light of what you know, whom you are supervising, whom are you friendly with, and what your history of involvement and investigation with key participants in the current investigation has been.

If you consider that anyone may reasonably perceive you as possibly biased or possibly prone to bias due to your own “case history” then back away and appoint someone else, who is seen to be more detached and removed. Plan B? If no-one fits the bill, then appoint an external investigator, and again, very useful to have a range of external investigators so that they each too in turn can be viewed as objective and not handicapped by previous involvement in a previous round of investigations.

About Tanya Hunter

Tanya Hunter brings considerable litigation and policy experience to her role as a workplace investigator and consultant. She has worked with state and local government, not-for-profits and private firms in the USA and Australia.  Tanya brings a balanced, impartial approach to the entire process from preliminary analysis of complaints to conducting investigations, creating productive policy guidance and solutions and implementing change projects.

Worklogic works with employers to resolve workplace complaints and create a positive culture at work. Please contact Tanya if your organisation needs assistance, call (03) 9981 6500 or come along to our training!

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