Jul 13

Warning indicators: When should you appoint an external investigator?

Consider the following situation: As an HR professional, you have received a complaint of inappropriate workplace behaviour. You have also decided that a formal investigation of the complaint is required. However, you are unsure whether to undertake the investigation ‘in house’ or appoint an external investigator.

Many factors will influence your decision as to whether an external investigator should be brought in. Here are some of the most important ones.

 

1. The severity of the allegations to be investigated

 

Depending on your reasons for requesting a formal investigation, you may not need to go ‘external’. If the allegations are not very serious, but you require a quick investigation in order to find out ‘what’s going on’, as a prelude to non-disciplinary action to remedy the situation (e.g. mediation or facilitated discussion, or even coaching), it may be sufficient to investigate ‘in house’.
However, an external investigator may be required if you are investigating the allegations as potential ‘misconduct’. That is, they are sufficiently serious that, if proven, would likely breach the required standard of behaviour in your organisation, and therefore potentially lead to disciplinary action. In this case, the requirements of natural justice and procedural fairness (discussed below) are more critical. That is, even if there are valid grounds for disciplinary action undertaken on the basis of the investigation, if the investigation is undertaken in a flawed manner, this could render any such action invalid (e.g. unfair dismissal). If the internal investigation cannot be undertaken with sufficient thoroughness, in a timely and unbiased way, or provide procedural fairness to the parties, an external investigator may be the safer option.

 

2. Natural justice: the ‘no bias’ rule

 

If you are a small organisation, the person who would ordinarily investigate may be in a potential conflict of interest, or appear to the complainant or respondent to be biased. For example, the potential investigator may need to make decisions regarding disciplinary action after the investigation, have an existing involvement with one of the parties, or be a potential witness.

 

3. The seniority of the complainant or respondent

 

If one of the parties is very senior, there may be a perception that the potential internal investigator does not have the requisite seniority or ‘clout’ to investigate the allegations, or feels conflicted in light of the obvious power imbalance (e.g. an HR Business Partner investigating the CEO).

 

4. Internal capacity to deal with the complaint

 

You may have no one in your organisation with the time or expertise to undertake an investigation, particularly if you are a small organisation and/or if the allegations are serious and lengthy. Again, where the allegations are serious, this creates a risk to the organisation if the investigation process is flawed.

 

5. The need for legal advice and legal professional privilege to apply

 

Finally, you may wish the investigation to be undertaken at ‘arms length’, for the purpose of enabling your legal counsel (or external lawyers) to provide legal advice. In this case, the investigation report may be subject to legal professional privilege.

 

About the Author

Tom HenrySince joining Worklogic in 2011, Tom Henry has completed a large number of challenging, highly technical investigations in a variety of sectors, and is in demand as a speaker and presenter.

If you would like to discuss any matters relating to workplace complaints and investigations, please contact Tom on 03 9981 6500 or via email at thenry@worklogic.com.au for an obligation free, confidential conversation.

Worklogic also offers training courses on undertaking effective workplace investigations. Our next full day workshop “Conducting Effective Internal Investigations” will be held at Worklogic in Melbourne on Thursday 28 July from 9am to 5pm. Register now for just $750 per person (exclusing GST).  If you have any questions about this workshop, please contact Danielle Calder or call 03 9981 6500.

Check out the Worklogic training program here.

Subscribe to the Worklogic blog to receive expert advice on resolving workplace complaints and building a positive culture at work direct to your inbox each week!