AUSTRALIA Law and Practice Contributed by: Kathy Dalton, Jonathan Wright, Gella Rips and Mirna Oghanna, Workdynamic Australia
6.3 Conclusion Investigators should produce some form of written investigation report, the complexity and level of detail of which depends on the seriousness of the matter. From a legal risk perspective, an investigation report is strongly recommended as investigation findings and the investigative process may become the subject of scrutiny by courts, tribunals and regulators. In such contexts, a high-quality written report is the most reli - able way for an employer to demonstrate defensible findings and procedurally fair process. The information usually contained in an investigation report is set out in 6.4 Reports . 6.4 Reports An investigation report should stand on its own, be easy for any reader to understand, and allow for effi - cient review by a decision-maker and the employer’s other advisers, such as internal HR or external coun - sel. A skilled investigator understands how to produce a report of this standard and to articulate findings in a logical and defensible manner. The report should also be drafted on the assump - tion that it may be read by individuals who were not involved in the investigation and who may have no prior knowledge of the matter. There are circumstances in which an investigation report (in whole or in part) may be disclosed more broadly – for example, to the reporter and respondent, a WHS regulator, or, if the matter is litigated, tribunal members and judges. Whether a report should contain recommendations as well as findings should be decided by the employer when formulating the investigator’s scope and terms of reference. Generally, it would be undesirable to include recommendations in a report that is not pro - tected by LPP, and which may be discoverable in sub - sequent legal proceedings.
An investigation report should contain: • an executive summary; • the terms of reference for the investigation; • an explanation of the background and key individu - als involved in the investigation; • the methodology used, including a list of interview - ees and the format used for interviews; • an explanation of how the investigation was man - aged, including any sources of evidence that were not or could not be pursued, as well as any issues that arose during the investigation and how they were resolved; • an explanation of relevant employer policies and how they were complied with; • assessment of witness credibility, if relevant; • a summary of relevant evidence; • findings, with clear, logical and reasoned analysis based on the relevant supporting evidence; • suggested next steps/recommendations (if required by the terms of reference); and • a list and/or copies of the evidence collected. If the investigation has been conducted under LPP, the report should clearly state that the document has been brought into existence for a legally privileged purpose and is protected by LPP. 6.5 Information Parties to an investigation do not have an automatic right to receive information regarding an investigation outcome. Unless more detail is required by law, litigation pro - cesses or specific policies, best practice requires that the employer provide a letter to the reporter and respondent which notifies them of the finding of each allegation (substantiated or unsubstantiated), rather than the whole investigation report or the investiga - tor’s detailed reasoning in respect of each finding. Typically, the following applies. • Reporters receive a high‑level outcome and any next steps that directly affect them. They are not informed about the specific disciplinary measures imposed on the respondent (unless necessary).
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