AUSTRALIA Law and Practice Contributed by: Kathy Dalton, Jonathan Wright, Gella Rips and Mirna Oghanna, Workdynamic Australia
conclusions without the benefit of that employee’s account, provided procedural fairness requirements have otherwise been met. In such circumstances, it may be open to the investi - gator to draw reasonable inferences from an employ - ee’s failure to provide an explanation or respond to adverse information that has been put to them. Where an employee seeks to rely on the privileges against self-incrimination or exposure to penalty to refuse to attend or answer questions, the employer should obtain specific legal advice, including whether such a right is exercisable. Employers generally lack control over non‑employees, and, unless legally or contractually required, their par - ticipation will be voluntary. 3.3 Format Ideally, interviews should be conducted in-person or via videoconference (for example, Zoom) rather than telephone interviews, as it can be more challenging to assess witness credibility. Online interviews are now standard and appropriate where: • parties are geographically dispersed; • travel would cause unnecessary delay or cost; • issues are straightforward and not highly con - tested; • confidentiality and privacy can be maintained; and • measures can be put in place to ensure confidenti - ality and privacy. In-person interviews may be preferable where: • allegations are particularly serious or sensitive; • credibility is likely to be key to the findings; • there are concerns about coaching or interference from a third party; and • the interviewee requests it due to distress, lack of privacy, or difficulty with technology. Employers should consider the suitability of an inter - view venue. To maintain confidentiality and privacy of participants, it may not be ideal to conduct on-site
interviews and preferable to arrange an alternative suitable location. When conducting interviews and sharing information online, employers should ensure that confidentiality is maintained by the relevant parties and any other measures to prevent unauthorised distribution or access. 3.4 Interviewers Generally, most investigations involve a single inter - viewer, who is the appointed investigator. See 1.4 Responsibility for the skills and considerations required of an investigator. In many investigations, experienced interviewing skills and qualifications are required to: • bring the appropriate gravitas and weight to the investigation; • have the necessary subject matter expertise to make informed findings of fact and application of policies; • draw out and test the evidence (particularly incon - sistent or contradictory evidence); and • ensure that the investigation is conducted impar - tially and in a trauma-informed way. 3.5 Neutral Party A neutral party is distinct from a support person and does not usually attend interviews. Their role is strictly to attend as a witness to observe the interview. Their presence may be appropriate in limited circumstanc - es, such as where a matter is particularly sensitive or the process may be disputed. They may perform the role of note-taker for the participants. In some cases, a witness may request that a person attend to act as a cultural liaison or interpreter. 3.6 Support Person and/or Lawyer Support Persons Most investigative frameworks allow support persons at interviews, and doing so is generally considered best practice. The FW Act also treats an unreasonable refusal to permit a support person in dismissal‑related discussions as a relevant consideration in determining unfair dismissal claims.
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