AUSTRALIA Law and Practice Contributed by: Kathy Dalton, Jonathan Wright, Gella Rips and Mirna Oghanna, Workdynamic Australia
investigators risk being poorly designed or executed, which may compromise procedural fairness, under - mine outcomes and cause unnecessary distress to participants. With new duties requiring employers to identify and address workplace psychosocial hazards, investiga - tions have shifted from a one-size-fits-all approach to a more responsive, person-centred model. Investiga - tors are now expected to use trauma-informed and culturally sensitive practices, and in some sensitive matters – such as sexual harassment – a same‑gender investigator may be appropriate. Workplace policies commonly identify responsibil - ity for the conduct of investigations and may specify whether investigations are to be undertaken internally or by external investigators. Regardless of whether an investigation is conducted internally or externally, employers should ensure that the appointed investigator: • has appropriate experience and training relevant to the nature of the investigation; • can maintain strict confidentiality; • is free from actual or perceived conflicts of interest; • is objective (neutral and unbiased) and impartial; • is trained in trauma‑informed investigation approaches; and • is familiar with the applicable investigative frame - work, including relevant legislation, workplace poli - cies and procedures. Where an investigation is conducted internally, con - cerns may arise as to whether sufficient independence can be maintained. In such circumstances, employers may consider engaging an external investigator, par - ticularly where senior personnel are involved or where impartiality may reasonably be questioned. External investigators are often engaged where specialised expertise or a strong understanding of investigative principles is required. Before appointing an investigator, consideration should be given to whether it is appropriate to engage the investigator through in-house legal or external lawyers to establish and preserve legal professional
privilege (LPP) over the investigation report and other documents created during the investigation. This may be particularly important where there is a real risk of litigation or regulatory scrutiny. Employers should also consider when and how to engage external lawyers in the investigation process. Early engagement of external lawyers can assist with: • framing the scope and terms of reference of an investigation; • advising on process, procedural fairness and legal obligations; • ensuring that critical evidence is preserved; and • confirming that the appropriate investigative frame - work is applied. 1.5 Obligation to Carry Out an HR Internal Investigation As set out in 1.1 Circumstances and 1.2 Bases , employers are not legally required to carry out an investigation. However, an investigation may be nec - essary and appropriate to demonstrate and manage legal compliance and risks. 1.6 Prohibition on Carrying Out an HR Internal Investigation Investigations are a routine function of workplace and workforce management. There are, however, limited circumstances in which an employer may be prohibited from commencing or continuing an investigation, including: • direction from law enforcement not to proceed, where an internal investigation would risk prejudic - ing a criminal investigation; or • an order or injunction from a court or tribunal pre - venting further investigation. Although relatively rare, there may also be situations in which it is not practicable to conduct an investigation. This may include instances where: • relevant witnesses are unavailable; • allegations are historic and evidence is no longer accessible;
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