Last week, at the annual conference of the Australasian Association of Workplace Investigators, there were some interesting and robust discussions in relation to the ethics that should be adhered to by independent investigators when they are investigating a complaint in the workplace.
The role of an independent investigator
There was a firm view that the approach of the external investigator is based on the values of independence and impartiality. These are also two key principles which clients rely on when deciding to engage an external investigator.
An investigator has an obligation to ensure the process of the investigation is procedurally fair, which means that we need to follow the ‘twin pillars’ of procedural fairness –
1) the fair hearing rule – which among other things includes obligations to provide a respondent with an opportunity to respond to the case against them
2) the no-bias rule – that the investigator should not be biased and should not have an appearance of bias when conducting an investigation.
The role and ethics of the investigator are therefore quite different to the role of other professionals who may be involved in handling a workplace complaint. The ‘hat’ that is metaphorically worn by an independent investigator in establishing whether allegations are proven or not, is a “disinterested” one. This is because the investigator is deeply and solely interested in uncovering the truth by way of a fair process.
The role of a law firm
In contrast, the ‘hat’ worn by a legal representative, by its nature, is deeply concerned in representing and advising on the interests of that client who is seeking legal advice – in employment cases, the interests of the employer. The role is accordingly a partisan one. This is due to its client-focused role. The lawyer is bound by law to consider the best interest of the client.
We are often engaged by law firms or internal legal counsels who specifically inform us of their conscious decision not to undertake the investigation as part of their own remit in giving legal advice. They want to ensure that they remain at arm’s length from the independent decision-maker investigator. In our experience, such role clarity is vital, both for the defensibility of the process. and the employee/participants’ trust (and therefore their open and full cooperation) in the investigation. The participants know that the investigator is independent and “disinterested” in anything apart from ascertaining the truth of the matter.
Conflict of interest and apprehended bias
To our knowledge, there has never been a case that has found that these two ‘hats’ (investigator of the facts and lawyer for the employer) are inherently incompatible. But in our view, a ruling to that effect is likely in future, given the increasing scrutiny that society is now placing on accountability and conflict of interest as evidenced by the current royal commission into the banking sector, calls for a federal government agency to combat public-sector corruption and greater demands for transparency in the handling of bullying and sexual harassment.
Of the limited cases available, it is interesting to note the 2015 case, Vega Vega v Hoyle & Ora (2015) QSC 111. Here, it was suggested in the view of the judge that the reasonable bystander would experience “disquiet” and maybe apprehend bias as to the activities of a law firm’s actions. In this case, a law firm advised a client, and so the firm was aware of “the back story” leading to the circumstances for the need for the investigation, and then conducted the investigation itself.
Previously, in the case of Perananthasivam v Telstra Corporation Limited,  FCA 1584 Justice Sackville was critical of Telstra and its lawyers for an investigation into an employee’s allegations of bullying. Justice Sackville stated that Telstra’s decision to use the same lawyers to investigate an employee’s allegations of bullying and subsequently to oppose that same employee’s unfair dismissal and discrimination claims in the Federal Court was not particularly sensitive, and resulted in a justifiable sense of grievance from the employee’s perspective.
It may therefore be only a matter of time before the duty of a lawyer to act in the best interests of their client, and the ethical and legal duty to run a reliable and fair investigation, are extensively and authoritatively explored in a court.
The ‘take home’ message
If you are outsourcing your investigation to an external provider, think carefully about what hat they are wearing. Consider minimising any risk of apprehended bias by engaging an external investigation service to run the investigation, and not rely on the employer’s lawyer. Ask your legal advisors, to also engage an independent investigator to inform their advice to you – but not to do the investigation themselves.
About Grevis Beard
Grevis Beard is the co-founder and Director of Worklogic and has amassed significant knowledge of the dynamics of workplace disputes and their resolution from more than a decade’s experience at Worklogic. Grevis works with a range of clients to improve workplace communication and behaviour, manage workplace risks and handle complaints by conducting workplace investigations, mediations and reviews.
Please contact Grevis for an obligation-free, confidential discussion on any challenges you face in the workplace.
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