Workplace investigations are a routine part of dealing with concerns regarding suspected misconduct of employees. Bullying complaints, psychosocial hazards, suspected fraud are the kinds of conduct that may require investigation. Workplace investigation firms would typically conduct them.
It is not difficult to find a law firm that can fulfil the role of providing employment law advice, as well as the role of workplace investigator.
The importance of protecting the independence of investigations should not be underestimated even when considering appointing a law firm.
With that in mind, the question to ask when a complaint arises for investigation is whether the law firm being engaged to provide advice should also carry out the workplace investigation. Plus the question whether the law firm’s advice takes account of the context in which local governments operate.
We will look at what these different roles involve and the issues which can arise where the same law firm is engaged in both roles for the same client.
The role of the legal adviser is to provide advice on legal risk and options for managing the situation. They have a duty to act in the best interests of their client.
On the other hand, the role of an investigator is to establish facts and make findings. An investigator should be impartial and free from bias. The investigator should not be the decision maker. This impartiality is the basis for credibility.
Contrast this with any investigation conducted by an employer into one of its employees: the employer is naturally going to be, or be perceived to be seeking to protect its own interests. This would tend to affect the impartiality of any investigation one of its staff conduct into the subject employee.
In local government and in the employment law context, transparency and fairness are important. The distinction between the roles matters.
At least two scenarios can arise:
In either scenario, it can be tempting to engage the law firm to do the second task because they have become familiar through the first. Let’s have a look at why this is not the best decision though.
A practical question for the CEO in relation to the engagement is whether the advice required from the law firm would also require the law firm to interpret or defend its own investigation?
If the answer in either scenario is yes, then engaging a separate legal adviser will better protect the independent character of the investigation.
Workplace investigations tend to be the prelude to management action, such as disciplinary proceedings, dismissal or report to an external authority.
Such action is at high risk of being the subject of legal challenge. And if that happens, the decision to take action will be scrutinised. That in turn, draws attention to whether or not the workplace investigation was done impartially.
Even where there is a separation of roles within the law firm, that will not necessarily present as independence.
Consideration would need to be given to whether engagements can be structured (within the law firm) robustly enough so that independence can be demonstrated, and later on, withstand scrutiny.
That kind of structuring does not however guarantee removal of the perception of bias that may be held by the employee under investigation, or in the eyes of an external party.
Investigation processes can end up being examined by the WA Industrial Relations Commission, the Corruption and Crime Commission or sometimes referred to in the media.
In Ebner v Official Trustee in Bankruptcy (2000) HCA 63, the High Court confirmed that the relevant test for apprehended bias is whether a ‘fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.’
In the context of an investigation, this would translate into whether an investigator who is engaged as legal adviser, might not bring an impartial mind to the task of making findings of fact.
In Philip Trestrail v City of Karratha [2024] WAIRC 00870, the WA Industrial Relations Commission closely scrutinised the investigation and considered whether procedural fairness was maintained.
While the case did not concern a firm acting as an advisor and an investigator, it showed how the Commission was prepared to scrutinise the relationship between the investigation process and the decision-making process. And a decision-making process that is aided by a legal adviser who also did the investigation calls out to be scrutinised.
An exception may be those situations where the advice is not about disciplinary outcomes, but about governance or organisational issues identified during the process. On such occasions, the independence of an investigation is less likely to be affected by the delivery of such advice.
It is worth considering the following process if considering engaging a law firm in a matter needing investigation:
As a final point, the relevant background or experience to consider is familiarity with the wider local government context in which the alleged/proven misconduct occurred.
Workplace investigations sit at an intersection of employment law and governance. They can be coloured by the local government context.
Best practice would mean having a separation between the role of a legal adviser and the role of a workplace investigator. Ideally, both should have local government law experience as well.
Clarity of roles can help maintain confidence in the process among employees and ensure that the best evidence is obtained upon which the organisation can base decisions. Protecting the independence of the investigation also helps ensure the local government has achieved a defensible process that can withstand any subsequent legal challenge to the decision following the investigation.
Senior Associate
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