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Gardiner, Katie; Arcaro, Elaine --- "Overview of workplace investigations in Australia" [2021] PrecedentAULA 29; (2021) 164 Precedent 22


OVERVIEW OF WORKPLACE INVESTIGATIONS IN AUSTRALIA

By Katie Gardiner and Elaine Arcaro

This article provides a general overview of some of the key features of a workplace investigation, including the special requirements that are relevant to whistleblower investigations.

TYPES OF ALLEGATIONS INVESTIGATED

Investigators are routinely engaged to investigate complaints of misconduct, breaches of company policy, unethical or improper behaviour, safety-related incidents and alleged breaches of law. Most employers are moving towards a presumption that a report or complaint will be investigated unless other factors would suggest that an investigation is inappropriate. There are a number of reasons for this shift, including:

• the whistleblower policy requirement in the corporate whistleblower laws that companies must provide 'information about how the company will investigate disclosures that qualify for protection', inferring that companies are expected to investigate reported misconduct;[1] and

• the legal and reputational risks of inadequately handling serious allegations.

There are also instances where a complaint may trigger a requirement to report to an authority or regulator, including where the allegation involves:

• a notifiable workplace injury or illness;

• data privacy breaches;[2]

• specific breaches under the Corporations Act 2001 (Cth)[3] (the Act); and

• child sexual abuse.[4]

In some cases, it is not clear when or whether an employer should report a complaint that is under investigation to an authority. For example, in allegations of criminal conduct (such as sexual assault), the employer will need to consider if it is appropriate to involve the police and will often involve the alleged victim in that decision.

ROLE OF THE INVESTIGATOR

An investigator is a specialised role that demands maturity and discretion and involves multiple – sometimes competing – roles in an investigation:

• as a fact-finder they should be detailed and thorough in their approach to gathering and scrutinising information and evidence;

• as a decision-maker they must be open-minded, impartial, have a good grasp of evidentiary principles, the balance of probabilities and the Briginshaw standard of proof;[5]

• as a process driver they must ensure the principles of timeliness and procedural fairness;

• as the elicitor of information from investigation participants, they should be approachable and courteous;

• as a communicator they should have strong drafting skills so that the business decision-maker can understand the investigation findings to make decisions that are proportionate to, and logically flow from, the findings; and

• where they are tasked to do so, as a proposer of recommendations they should be circumspect and confine their recommendations to the scope of the investigation and ensure that their recommendations align with the evidence that they have obtained and reviewed as part of the investigation.

Given the high stakes involved and the many hats that must be worn, a business should give serious consideration to the qualifications and credentials of the investigators they choose to instruct to conduct their investigations.

Employers are increasingly appointing highly specialised external investigators to handle their complaints. External investigators are beneficial to both the business and the participants, as the investigator ensures an impartial approach. In particular, employers who intend to claim legal professional privilege over an investigation will often engage a law firm or legal practitioner to conduct the investigation.

STANDARD OF PROOF

An investigator will apply a civil standard of proof to their findings; that is, on the balance of probabilities.[6] An investigator is not required to prove their findings to the higher standard of proof used in criminal proceedings of beyond reasonable doubt.

When considering the evidence that has been obtained in support of a serious allegation however, the ‘Briginshaw test’ should also be applied. While sometimes explained as ‘serious allegations require stronger evidence’, the following passage of Dixon J's judgment in Briginshaw demonstrates that the principle is a little more nuanced:

‘But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony or indirect inferences.’[7]

PARTICIPATION OF AN EMPLOYEE

Being called upon to participate in an investigation, whether as a witness or respondent, may be a frightening prospect for an employee. Witnesses often ask to ‘go off the record’ or question the necessity of their involvement. While it may be a stressful situation, an employee is expected to fully participate in a workplace investigation. If the employee refuses to participate, generally an employer can direct the employee to participate on the basis that failure to do so will result in disciplinary action.

Respondents who refuse to participate may find that the investigation makes adverse findings against them in the absence of their evidence.

CORPORATE WHISTLEBLOWER INVESTIGATIONS

There are special considerations that an investigator must consider when conducting a corporate whistleblower investigation, in particular the onerous confidentiality obligations that are placed on those who receive information regarding the whistleblower's identity or the details of a whistleblower disclosure.

The Act sets out the framework for the process of disclosure and the protections that are afforded to a whistleblower. In mid-2019, the whistleblower legislation was expanded to provide greater protections. For a whistleblower to attract the protections under the Act, they must:

1. meet the definition of an eligible whistleblower, which is broad and includes past or present employees and contractors of the regulated entity (with no prescribed time limit);[8]

2. have reasonable grounds to suspect that misconduct or an improper state of affairs or circumstances has occurred in relation to the regulated entity;[9] and

3. disclose the information to an eligible recipient at the regulated entity or a related body corporate. An eligible recipient includes officers, senior managers and persons authorised by the regulated entity to take whistleblower disclosures.[10] In some cases, whistleblowers will also be protected when they disclose to a lawyer, ASIC or APRA.[11]

Whistleblower disclosures can be made anonymously[12] and do not need to be made in good faith, which means that a whistleblower can be motivated by revenge and will still be protected under the laws, so long as they have a reasonable basis for suspecting the misconduct that is alleged.[13]

The confidentiality obligation under the whistleblower laws prohibits the disclosure of the whistleblower's identity or information that is likely to lead to the whistleblower's identification.[14]

The first relevant exception to this rule is the whistleblower's consent.[15] Investigators should ask the employer whether written consent has been obtained, and if not, request permission from a whistleblower before providing their identity or information that is likely to lead to their identification to anyone else for the purposes of the investigation.

In circumstances where the whistleblower is anonymous or refuses consent, an investigator can rely on the investigation exception, which allows investigators to disclose information likely to lead to the whistleblower's identification such as the details in the disclosure itself, so long as:

• they do not disclose the whistleblower's identity;

• the investigator takes all reasonable steps to reduce the risk that the whistleblower will be identified (for example, by redacting certain information); and

• the disclosure of information is reasonably necessary to investigate the issues raised.[16]

Tension can arise between the need to observe the confidentiality obligation and afford procedural fairness to a respondent where a whistleblower refuses consent for their identity to be revealed.

CONCLUSION

Employers are increasingly aware of the importance of appropriately dealing with complaints raised by employees and the need for robust workplace investigations. The legal and reputational risks that can flow from a mishandled complaint may be significant. Workplace investigations demand a range of specialised skills, and this article highlights a few of the technical aspects of an investigator's role.

Katie Gardiner is Manager of Business Investigations at Allens. EMAIL katie.gardiner@allens.com.au.

Elaine Arcaro is an Investigator at Allens. EMAIL elaine.arcaro@allens.com.au.


[1] Corporations Act 2001 (Cth) (Corporations Act), s1317AI(5)(d).

[2] Privacy Act 1988 (Cth), s26WL.

[3] See s912D.

[4] Children and Young People Act 2008 (ACT), s356; Children and Young Persons (Care and Protection) Act 1998 (NSW), s27; Care and Protection of Children Act 2007 (NT), s26; Child Protection Act 1999 (Qld), pt 1AA, ss13E13F; Education (General Provisions) Act 2006 (Qld), s364; Children and Young People (Safety) Act 2017 (SA), ss30–1; Children, Young Persons and Their Families Act 1997 (Tas), s14; Children, Youth and Families Act 2005 (Vic), pt 4.4, s182; Children and Community Services Act 2004 (WA), s124B; Family Court Act 1997 (WA), s160.

[5] See Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

[6] If an investigation were to become the subject of legal proceedings, the balance of probabilities is the standard of proof that would apply: see Evidence Act 1995 (Cth), s140(1).

[7] Ibid, 362 (Dixon J).

[8] Corporations Act, above note 1, s1317AAA.

[9] Ibid, s1317AA(4).

[10] Ibid, s1317AAC.

[11] Ibid, ss1317AA(1) and (3). In rare cases, protections may also be provided where disclosures are made to a journalist or Member of Parliament – see ibid, s1317AAD.

[12] Ibid, s1317AAE; ASIC Regulatory Guide 270: Whistleblower policies (November 2019) reg 270.83.

[13] Ibid, s1317AA(1)(d).

[14] Ibid, s1317AAE(1)(b)(i)–(ii).

[15] Ibid, s1317AAE(2)(f).

[16] Ibid, s1317AAE(4).


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