It’s great if your workplace investigation into misconduct, bullying or inappropriate behaviour can be managed internally. However, there are occasions when this is not possible or should not occur. Here are some ideas about when it is more appropriate to engage an external investigator.
When you lack the expertise
If you don’t have the expertise in conducting investigations internally, don’t risk it. Patricks Stevedores was criticised by the Fair Work Commission during an unfair dismissal hearing for exactly this reason (Francis v Patrick Stevedores Holdings Pty Ltd  FWC 7775). The Fair Work Commission described the internal investigation related to an incident of assault as having ‘serious and fundamental flaws’ partly due to the inexperience of the HR Manager who managed the process. The result was the claim of unfair dismissal being upheld, with Deputy President Sams noting:
‘Ms Green had never conducted a disciplinary investigation into allegations of physical assault at the workplace. Her inexperience and lack of forensic skills as to the assessment of witness evidence, was a major contributory factor to the weaknesses exposed in the respondent's evidentiary case.’
When the incident or issue is particularly complex
An external investigator can also be an appropriate option where the situation is highly complex and contested. Farmer v KDR Victoria Pty Ltd T/A Yarra Trams  FWC 6539 centred on the actions of Mr Farmer, a driver whose employment was terminated after being accused of using a mobile phone whilst driving a tram across an intersection. The incident was witnessed and reported by two off duty managers and the allegations were put to the employee leading to various contested accounts of when, how and why certain actions happened. The investigation was conducted by Mr Farmer’s depot manager. In upholding a claim of unfair dismissal, Commissioner Wilson stated that an external investigation may have been more appropriate:
‘Although Yarra Trams had a right to be concerned about the report of [the off duty managers], an objective and potentially arm’s-length investigation might have demonstrated to the company that their observations were not definitive and that, in the absence of other corroborative evidence or the admissions of Mr Farmer, the company risked relying upon “inexact proofs, indefinite testimony, or indirect inferences”.’
When you need to manage bias
Even in large organisations, workplace investigations can be politically charged and require a significant investment of time and energy, especially to keep them progressing in a timely manner. An external investigator can minimise perceptions of bias and since their focus is solely on the investigation, the result can be a quicker and less disruptive process.
- Additionally, it is important that there are separate people conducting the workplace investigation and making the decision about any punitive measures that may result. The role of the investigator is simply to gather evidence to determine the allegations and make recommendations on possible responses. In some organisations, there may not be the structure that allows two people to take on these roles.In that circumstance, you can’t outsource the decision making responsibility (as much as you may want to!) so it is best to secure an external party to conduct the investigation.
Engaging an external investigator may cost more upfront but if the situation requires it, they can help you avoid unnecessary complications and save time, energy and money.