Investigations

What is an investigation?

The Australian Government Investigation Standards (2011) defines an investigation as “[a]n investigation is a process of seeking information relevant to an alleged, apparent or potential breach of the law, involving possible judicial proceedings. The primary purpose of an investigation is to gather admissible evidence for any subsequent action, whether under criminal, civil penalty, civil, disciplinary or administrative sanctions. Investigations can also result in prevention and/or disruption action”.

The aspect of an allegation is central to an investigation and seeks to identify relevant evidence proving or disproving the alleged breach. For child related organisations allegations will typically breach a Code of Conduct and Enterprise Agreement and in more serious cases, in some jurisdictions, be reportable conduct.

Is it necessary to investigate every complaint or allegation?

This will depend whether there is a legislative requirement to do so (reportable conduct or in the case of child care services a serious or notifiable incident), the type and seriousness of the  alleged conduct and relevant employment considerations.

Types of Investigations

From a workplace misconduct perspective the common investigation types are Preliminary Assessment and Formal investigation.

A Preliminary Assessment is a less formal investigation which seeks to investigate allegations in a timely manner and by obtaining less formal evidence and exploring less avenues of inquiry. For example commonly summaries of evidence will be obtained from witnesses instead of formal witness statements and the detail of any allegation and final report is, commonly, less detailed than a formal investigation.

A formal investigation is conducted for serious allegations, including any reportable conduct and will usually be the process conducted prior to the determination of formal employment sanctions such as a formal warning, additional training and in some matters termination of employment.

In work, health and safety matters an incident investigation is often conducted which seeks to identify the root cause of the incident and areas of improvement. The Western Australian Department of Mines, Industry Regulation and Safety has a useful summary of such investigations and identifies the focus on what did occur and what should have occurred to identify areas of improvement. This differs to a Workplace Misconduct Investigation which seeks to determine what occurred, not what should have or areas of improvement.

Common steps in conducting an investigation

The various steps conducted in an investigation can be summarised as:

• Complaint received
• Initial assessment to determine whether this is matter that should be investigated or can be resolved by alternate less formal means
• Investigation commenced
• Initial contact with the party who has made the allegation
• Advise the party the subject of the allegation of the details of the alleged breach
• Obtain evidence from the party who made the complaint and witnesses and any documentary or electronic records
• Interview the party the subject of the allegation
• Analyse evidence
• Prepare a report regarding the allegation assessing whether, on the balance of probabilities, it is likely to be sustained, not sustained or cannot be determined
• Provide report to the decision maker

Alternative options to an investigation

When a complaint/allegation is received it may be appropriate to resolve the matter informally by a meeting with relevant parties, use of restorative justice processes, use of mediation or the assessment that no further action is required.

The appropriateness of such actions will depend on the nature of the alleged breach.

Common investigation documentation

During a preliminary assessment/formal investigation the following documents etc will commonly be created:

• Preliminary Assessment/Investigation Plan
• Preliminary Assessment Allegation Letter/Formal Allegation Letter
• Notes of interviews with relevant parties i.e. witnesses
• Statement of account/Witness Statements
• Records of Interviews
• Running log – records actions taken to conduct the investigation
• Preliminary Assessment/Investigation Report

The importance of Procedural Fairness

There are various resources referred to in Principle Six regarding Procedural Fairness. This administrative law principle is fundamental to conducting an investigation to ensure that a fair process is conducted, any decision maker does not have a conflict of interest and the party being investigated is provided with sufficient information to be able to provide a response.

There are commonly various complexities that can arise regarding Procedural Fairness and these issues should be carefully considered as this has the potential to adversely affect the whole process. Informative fact sheets about Procedural Fairness can be found on various Australian Ombudsman websites such as the Western Australia Ombudsman.

The next steps

When an investigation has been finalised the outcome should be advised to the party being investigated. The party should be provided a further opportunity to comment on the proposed finding (in a specified timeframe) and any proposed sanction, where the allegation has been sustained (often referred to as a Preliminary Finding). Once a reply has been received or the time period has elapsed the matter will be finalised and a final finding issued.