A factual workplace investigations primer for OHS

Organisations that manage workplace investigations well have three characteristics in common, according to an expert in the field.

Firstly, they have the foresight to assess matters of alleged misconduct as soon as they occur, and secondly, they also factor into the assessment of the organisation’s internal capability and capacity to investigate.

Thirdly, they assess whether conducting the investigation internally can be done so in the absence of any actual or perceived bias of conflict of interest, said Andrew Warton, managing director of workplace investigation and conflict resolution firm Warton Strategic.

“Ultimately all workplace investigations, whether they involve bullying and harassment, sexual harassment or a workplace incident resulting in injury or death, are relevant to the maintenance of a safe workplace to varying degrees,” said Warton, who was speaking ahead of the NT Health & Safety Symposium, which will be held at Oaks Darwin Elan Hotel on Wednesday 27 September 2023.

At a minimum, Warton said organisations have a duty of care to complainants, respondents and witnesses involved in workplace investigations to ensure their wellbeing.

“This can present as a challenge, particularly in instances of high conflict and threatening behaviour that may spill over and impact families and individuals outside the workplace including online,” said Warton, who has previously served in a number of roles with the Australian Federal Police (AFP), including as a criminal investigator in Australia with a particular focus on multinational and internal investigations.

“It has been scientifically established that the likelihood of two snowflakes being identically the same is about one in millions of trillions. This is an estimate safely translated into the risk management speak as sitting somewhere far south of rare,” he said.

“The same may be said for workplace investigations and the conduct and misconduct upon which they arise.”

While nature influences most of the snowflake’s formation and journey, Warton said humans and organisational culture influence the course of workplace investigations.

“From the second an alleged act of misconduct occurs in a workplace the investigation may take a myriad of paths,” said Warton, who noted that, in some cases, where appropriate, that path may be a direct line to an alternative means of dispute resolution such as reasonable management action or mediation.

“In others, it may result in an investigation undertaken from within the organisation by the human resources team, or another part of the business with the requisite skills and relative independence,” he said.

“The other path, and a path I assist clients with daily, is the engagement of a workplace investigator external to the organisation. All are valid and well-worn pathways, all have their place and recognise and operate on the foundation of procedural fairness, natural justice and the ever-important need to recognise the impact of dispute resolution and workplace investigations on the well-being of all parties involved, including investigators.”

Regardless of an organisation’s size, mission, structure, or location, he said one aspect “always stands out” when he is engaged in an investigation, and that is the presence, absence or adequacy of the organisation’s code of conduct and associated professional standards, disciplinary and conflict resolution governance.

“The organisations that don’t fare well when it comes to workplace investigations start on the backfoot where this governance falls short because it opens the organisation up to later challenges, does not promote consistency of employee treatment, and sometimes makes linking an employee’s misconduct to an organisational rule or standard problematic,” he said.

Other clear and present challenges include managing whistleblower complaints, the preservation of evidence such as IT-related material, CCTV footage, communications made using applications designed to erase content after a set time, and maintaining business continuity while a workplace investigation is being undertaken.

“Often a workplace investigation will involve a complainant and respondent who decide to take a leave of absence during part or all of the investigation and this has additional consequences for business continuity and employee wellbeing,” he said.

Another challenge Warton has navigated with some clients in recent years arises where the misconduct investigation reveals evidence triggering an anti-corruption reporting obligation, and in some cases, evidence of a possible criminal offence.

“While this scenario is always manageable, the management must be carefully considered and carefully handled to avoid compromising any investigations on-foot and with close attention to procedural fairness, admissibility of evidence and the order of proceedings,” said Warton, who explained that these “snowflake scenarios” are both unique and delicate.

For OHS professionals faced with the need to act on an incident involving alleged misconduct, from the misuse of a company asset to a serious injury or death in the workplace, Warton’s starting advice was to “take a deep breath, then assess the situation on the evidence and factual material available.”

“Preserve any evidence as soon as practicable, use the organisation’s systems, governance, and expertise to determine the most appropriate next steps. Most organisations are well-equipped to conduct such investigations internally.
However, where the internal investigator or investigative team have pre-formed relationships with parties involved in the alleged misconduct, or where the matter has a potential to take a path towards a regulator or the courts, or where the benefits of a fresh and external set of eyes and experience become apparent, Warton said the appropriate step is to transfer the risk to an external and appropriately qualified and experienced investigator.

“Regardless of which path is pursued, it is in everyone’s best interests to take considered, defensible, lawful, and timely action when it comes to instigating and undertaking workplace investigations,” he said.

Warton will be speaking about the process of factual workplace investigations at the NT Health & Safety Symposium, which will be held at Oaks Darwin Elan Hotel on Wednesday 27 September 2023 from 8 am to 5 pm. The symposium’s topics have been separated into four sections to highlight the complexities and changes that WHS practitioners and professionals currently face. For more information call (03) 8336 1995, email events@aihs.org.au or visit the event website.