Workplace investigations and the Security and Related Activities (Control) Act

Did you know that engaging someone to assist with your workplace investigation may render them liable for a fine of up to $15,000 and undermine the whole process of the workplace investigation?

Situations can arise in the workplace, which require an employer to conduct a workplace investigation. 

Workplace investigations are often carried out by the employer’s internal staff (say, by the HR team).  However, an employer may choose to hire an external investigator to conduct the investigation in certain circumstances. 

When and why would you hire an external investigator?

Reasons for hiring an external investigator may include:

  • When the allegations are serious (eg employee misconduct such as alleged discrimination, sexual harassment, bullying, inappropriate use of the internet or social media, theft of company property, fraud and policy breaches);
  • When the stakes are high (when allegations are made against an employee, the employer’s business and reputation may be on the line);
  • The need for impartiality (the parties must feel that they have been treated fairly throughout the process);
  • Training and experience (cases can be complex, and the investigator must be adequately trained in interviewing witnesses, gathering relevant documents, and experienced to evaluate the evidence, assess credibility of witnesses, weigh corroborative, circumstantial and similar fact evidence, and reach a conclusion);
  • Timeliness (eg lack of internal resources);
  • Dealing with the media (eg allegations involving discrimination or harassment may attract unwanted media attention, and investigators must ensure that information regarding the investigation is not prematurely disclosed to the public);
  • Maintaining privilege (eg hiring a lawyer as an investigator can help to protect legal professional privilege);
  • Simplifying litigation (eg a comprehensive investigation report, if favourable to an employer, can shut down legal disputes at an early stage, as adjudicators may wish to rely upon the findings of a sound investigation report to determine issues of employer liability); and
  • Rebuilding trust and morale (eg complaints of wrongdoing by employees can harm workplace morale and an employer who fails to conduct a fair and thorough workplace investigation into allegations risks creating more toxicity in the workplace).

In Western Australia, investigators, unless they are certain persons who are exempted such as lawyers and employees of insurers, must be licensed under the Security and Related Activities (Control) Act 1996 (WA) (Act), otherwise they can be liable for a fine of up to $15,000.

Pitfalls of using an unlicensed external investigator

Using an unlicensed external investigator may delay the investigation process or, after the investigation report has been completed, undermine the entire process, requiring it to be restarted. 

In matters where the employer is required to conduct an investigation in a timely manner, an unlicensed investigator may delay the matter, to the detriment of all parties involved. 

If another investigation is required due to the employee challenging the ability of the unlicensed investigator to conduct the investigation, then recollections of events may diminish as time passes. 

If there is a need for an employer to take interim action whilst an investigation is underway (for example, suspending an employee who is the subject of the investigation, allocating the employee to another workplace, or limiting the employee’s access to work email and computing systems), delays will result in the employer’s interim action against the employee being extended for a time that may not have been intended by the employer.

An employer needs to implement natural justice when conducting an investigation, and particularly, give the employee the opportunity to respond to issues arising out of the investigation.  If there is a delay, natural justice may not be afforded to the employee. 

Once an investigation is concluded and if the employer decides to take action against the employee (eg by dismissing the employee), this could result in the employee bringing a claim against the employer for not providing procedural fairness.  For example, an employee may argue that their dismissal was unfair because the employer should not have relied on the findings and report of an unlicensed investigator to effect dismissal.

Finally, if the investigation into an incident is delayed, it may appear that the employer has not taken the incident seriously.  This might mean that the behaviour complained of by the employee continues against the employee (as it may look like the employer is not doing anything or condones the behaviour complained of), and may result in criticism, which could then adversely affect other employees in the workforce. 

Lavan Legal comment

If an employer’s HR team is considering engaging an external investigator to undertake a workplace investigation, the team should ask for confirmation that the investigator is licensed and obtain the licence number to check against the list maintained by the WA Police:

https://www.police.wa.gov.au/About-Us/Our-agency/Police-Licensing-Services/Security/Current-licence-holders

Alternatively, the HR team may consider hiring an external law firm such as Lavan Legal to undertake the workplace investigation.

Alternatively, and particularly where an employer requires legal professional privilege to be maintained over the material produced as part of the investigation, Lavan Legal can assist you to appoint and instruct an external investigator.