An investigation is simply the search and discovery of information and the facts relating to a particular issue or incident. However, notwithstanding this somewhat simple explanation, investigations can be quite complex in nature.
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Depending on the type of investigation, and whether it is occurring within a workplace involving employees, or externally with suppliers and customers, investigations can involve a range of diverse aspects such as whistleblower protections, potential criminal conduct, employee misconduct, personal workplace grievance and as we are seeing more frequently, balancing the health and wellbeing of those involved regardless of their role in the investigation.
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The commonality in all good investigations, especially a workplace investigation, is to elicit the facts of the matter in a fair and unbiased manner and to present factual findings in a concise, well-articulated and precise manner to assist those charged with determining any outcomes or sanctions to make a well-informed decision.
The five key elements
Set out below are the five key elements to conduct a successful investigation:
1. Define the scope of the investigation
Setting the scope for an investigation is essential to ensure that distinct boundaries and clear objectives are defined. Often, as investigations progress, information is uncovered that is not within the scope of the original investigation. When this happens, it is important to consider whether this new information is important and relevant to the current scope and investigation being undertaken. If it is, then at this point it is vital the investigator raises this new information and a decision is reached with the appropriate stakeholder to expand or increase the scope of the investigation.
If the new information is not deemed as relevant to the agreed scope of the investigation, and it is considered that ignoring it will not be prejudicial to the outcome of the current investigation, then it is important for the investigator to disregard the information and remain focused on the scope and objectives of the current investigation. Failing to do so can lead the investigator to digress from the original scope and waste precious time and resources on inquiries that are not within the scope of the investigation. Another problem that this can create is that failing to adhere to the scope, and by extension conducting additional inquiries, can lead to introducing new issues for the organisation to manage. A good example of this can be an employee misconduct investigation that uncovers potential performance issues regarding the respondent. The investigator needs to carefully assess if the information being supplied in relation to the performance issues is relevant to the current investigation and if not, not commence making further inquiries into the performance-related issues.
Taking too long to conduct and complete an investigation is a common criticism of investigators. Having a clearly defined and agreed to scope is good practice to ensure the investigator is clear about what they are investigating (and therefore obtain the right information and evidence) and can avoid unnecessary time delays and complications by introducing irrelevant or inappropriate information into the investigation.
When developing the scope for an investigation, it is important not to set the limits too wide or too narrow. Either way can have significant implications for the outcome of the investigation and prevent the objectives of the investigation from being met and may impact whether the investigation is considered procedurally fair to all parties.
2. Plan the Investigation
The planning phase of an investigation is arguably the most important element for a successful investigation and yet it is one that is often done the least.
Proper planning involves being clear on the objectives of the investigation (i.e. what are you looking to prove or disprove) and identifying the lines of inquiry you will undertake, and in what order, to achieve your objectives. Naturally, a good investigator is adept at conducting concurrent inquiries and you need to be flexible in how you conduct your investigation. Sometimes there are delays on meeting with complainants and witnesses or perhaps certain pieces of data and information are difficult to locate. Regardless of these common issues, as the old saying goes “proper planning prevents poor performance”.
A good investigation plan is one that gives thought to the various and numerous lines of inquiry and in what order you will try and achieve them but also provides you with the flexibility to change as required. It’s a guardrail to give you some guidance.
Building upon the first point, a good investigation plan is built with a solid understanding of the scope of the investigation, what are the issues or allegations you are trying to prove or disprove and outlines the important inquiries you need to conduct to reach your objective. Linking this back to the most common criticism of investigations taking too long, a well-thought-out investigation plan can really help you as an investigator to stay on track, manage your priorities and ensure you manage concurrent inquiries in a timely manner.
3. Collect relevant evidence
Now the fun part starts – investigating!
There are many things to consider when commencing the evidence collection part of an investigation, but one important part is to consider the impact the investigation will have on those involved. More recently this is known as being ‘trauma-informed’ or victim-centred. Regardless of an individual’s role in an investigation, whether they be the complainant, the respondent or a witness, a good investigator needs to consider the impact that participating in an investigation may have on that individual, especially those that may have had previous exposure to trauma in its many forms, which is most of us.
One of the crucial things to consider is the reputational impact on all involved but in particular both the complainant and the respondent. In order to protect reputations and to preserve evidence, consideration should be given to what inquiries may be able to be conducted covertly (i.e. without speaking to someone) or overtly. Where practicable, investigators should do their best to collect and elicit evidence in a covert and confidential manner. Apart from limiting the negative impact an investigation may have on the parties involved, collecting evidence in a covert and confidential manner is important to maintain the integrity of the investigation.
Evidence can be derived, collected, or obtained in various ways and in diverse formats. Examples of evidence include the form of testimony from a witness, a written statement, forensic data, a photograph, a recording or even a physical object.
Whilst collecting evidence is crucial within an investigation, it is also equally as important to ensure that there is an accurate record kept of the evidence obtained during the investigation. This includes information relating to:
- How the evidence was obtained;
- Who obtained it;
- When it was obtained; and
- Where it is stored and kept.
Furthermore, records should always be kept in relation to any movement of evidence to ensure the integrity of the exhibit and reduce any chance of the accusation of tampering with evidence. This is often referred to as the ‘chain of custody’. If you would like to read our article on chain of custody, click here.
4. Review and analyse the information
Reviewing and analysing the collated evidence and pertinent information is perhaps the most time-consuming part of any investigation. It is also very important to help the investigator assess the strength of the evidence and information against the allegations being made in order to make a well-informed, fact-based determination on whether the allegation is substantiated, unsubstantiated or unable to be substantiated.
Throughout this phase of the investigation, it is not uncommon to identify additional lines of inquiry that may need to be performed to aid the investigation. When this arises, it is important to once again assess and consider the probative value of that new information, and importantly, whether the inquiry will aid the investigation based on the scope. As an investigator you also need to consider whether omitting this information or not conducting relevant inquiries, may prejudice the outcome of the investigation and lead to an unfair outcome for the parties involved.
This includes allowing an investigation to establish where further evidence may require to be obtained to ensure that all inquiries are exhausted.
Reviewing and analysing evidence should be done with an objective mindset. This can be undertaken in a systemic way of documenting what evidence has been collected, whether this evidence substantiates or unsubstantiates an allegation and lastly, what an analysis of the totality shows. In conducting this analysis, it is important to limit any possibility of investigator bias and to assess the evidence against the requisite standard of proof such as ‘on the balance of probabilities’.
5. Document the findings
The final stage of an investigation is to provide a report or document that is accurate, concise and outlines:
- What actions were undertaken in the investigation;
- How were these actions undertaken;
- What evidence was obtained;
- An analysis of this evidence and what is the outcome from the analysis; and
- A final decision based on the analysis referred to above.
When documenting the above, all evidence, inculpatory and exculpatory, must be included within the report to ensure that there is transparency about the reliability and weight allocated to evidence.
There is a lot of debate on this next point but be mindful not to include recommendations in your fact-finding report. We are of the opinion that an investigation report should report on the findings of the investigation against the allegations raised, and not delve into recommendations. Naturally, as a good investigator, you will identify shortcomings or deficiencies in processes (that lead to recommendations) and it would be remiss of you not to document these and share them with the appropriate parties within the organisation. However, we recommend this is done in a separate document outside of the investigation report.
Summary
Investigations can often seem daunting and complex to start and in many cases, this may be the case. However, when approaching an investigation, irrespective of the nature of the issue being investigated or the parties involved, if you follow these 5 key elements then you will increase your chances of conducting a successful investigation that is delivered in a timely manner.
These key elements will assist an investigator, irrespective of their experience, to conduct a successful investigation that achieves its purpose and adheres to the principles of natural justice. These elements, as described above are:
- Scoping out the investigation;
- Planning the investigation;
- Collecting all relevant evidence;
- Reviewing and analysing the evidence and information; and
- Documenting the steps and findings in a concise and well-articulated report.
No matter how simple or complex your investigation is, you and your organisation will benefit greatly from following these 5 key elements and doing it consistently.
