Should HR step away from misconduct investigations?

While they can be expensive, there are some situations where it may be best to call in a lawyer to investigate employee misconduct.

Should HR step away from misconduct investigations?
an HR professional, the likelihood is that you’ll be the first port of call for your company in the event of inappropriate workplace conduct.

But where should you draw the line in agreeing to conduct investigations into such behaviour? According to one legal expert, HR needs to know when it is time to outsource an investigator.

“The fundamentals of any robust investigation are well established,” Clayton Payne, special counsel in the workplace relations team at Mills Oakley Lawyers, told HRD magazine.

“For example, procedural fairness should be observed and impartiality maintained. To the fullest extent possible, confidentiality in relation to a relevant complaint or claim and the evidence obtained should also be maintained.”

Beyond this, Payne continued, it may be relevant for HR management teams to consider the possibility of engaging a third party – that is, a person external to the organisation – to conduct the investigation.

“The legitimacy of this method was confirmed by the Fair Work Commission last year,” Payne said.

“Using a third party investigator has the twin benefits of conserving the HR team’s time and resources and addressing the inevitable problem of bias and the perception of bias.”

While Payne acknowledged the capability of HR teams to carry out an investigation without bias, he warned that HR management-conducted investigations may be subjected to scrutiny in instances where a matter reaches the courts.

“A line of attack brought by the employee litigant might be that internal HR staff were colluding with the business or failing to discharge their duties in an objective manner,” he suggested.

“Such complaints – even when shown to be groundless – have the effect of adding to the cost and complexity of defending the proceedings.”

Using a lawyer

Payne told HRD that where the third-party appointee is a lawyer, two more important benefits ensue.

“Firstly, the business that has commissioned the investigation may be in a position to claim legal professional privilege over any resulting report, which may also have the effect of limiting reputation damage to the organisation,” he said.

“Secondly, appointing an investigator with the relevant legal experience will hopefully ensure that the evidence obtained is of a standard that could prove to be not only useful but crucial in any ensuing litigation.”

He added that the appropriateness of making a third-party appointment will vary according to the seriousness of the claim or complaint, and the business will need to balance the cost against the strategic benefits.

“That said, an early investment in this process could be extremely useful in saving costs later on, particularly if litigation ensues,” he said.

“The decision [on whether to outsource] could have far-reaching consequences.”

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