Businesses are required to manage workplace complaints (including Whistleblowing) appropriately where there is an allegation of misconduct by ensuring the process is fair, credible and capable of building trust and supporting sound decision-making.

Recent public scrutiny of how some organisations have handled Whistleblower complaints and subsequent workplace investigations has reinforced the importance of getting the process of defining the nature of the complaint and demonstrating impartiality right from the outset. Particularly where concerns involve Senior Managers, are an eligible Whistleblower complaint, or where business confidence and the integrity of its processes are impacted.

Internal versus External Workplace Investigators

Not every workplace complaint needs to be investigated externally. Internal Investigations can be appropriate when there is a clear separation between the Investigator and decision makers, or if there is the internal capability to carry out a process that can be managed in a way that ensures procedural fairness for all participants.

However, there are some matters where appointing an external Workplace Investigator is necessary. This may be matters where the allegations involve Senior Managers or Executives, or where concerns or complaints continue to escalate after being managed internally, or where there is an actual or perceived conflict of interest, or where the matter is likely to attract broader scrutiny from third parties such as unions and regulators.

In these circumstances, maintaining a credible investigation process by having complaints externally investigated will help ensure that investigation outcomes are both legal defensible and can withstand potential media scrutiny.

Correctly defining a Whistleblower complaint

The Corporations Act 2001 (Cth) (the Act), provides protections for eligible Whistleblowers who speak up in the form of a protected disclosure about misconduct or an improper state of affairs that encompass fraud, negligence, default, breach of trust and breach of duties.

As a snapshot, the characteristics of a protected disclosure in a Whistleblower complaint requires:

– The discloser to be an eligible Whistleblower;

– The disclosure is made to an eligible recipient, and

– The discloser has reasonable grounds to suspect the information concerns reportable matters such as serious misconduct or an improper state of affairs or circumstances.

The distinction between a Whistleblower complaint and a personal work related grievance is particularly important as Whistleblower complaints have obligations businesses are required to comply with. Such obligations include (but are not limited to) ensuring that Whistleblowers are not faced (or threatened) with detriment and that reasonable measures are implemented to prevent the unauthorised disclosure of their identities (and the information they provide) to third parties (unless where it is permitted under the Act) without their consent.

Generally, a personal work-related grievance, as defined in the Act, are matters involving:

– an interpersonal conflict between the discloser and another employee;

– a decision relating to the engagement, transfer or promotion of the discloser;

– a decision relating to the terms and conditions of engagement of the discloser;

– a decision to suspend or terminate the engagement of the discloser, or otherwise to discipline the discloser.

Where external Workplace Investigators can add value

An external Workplace Investigator is the focal point of independence in your workplace investigation which can be relied upon in those tricky situations where your internal processes have been scrutinised or there is a need for your business to demonstrate greater separation between the Investigator and the ultimate decision maker, particular in those high stakes Investigations that can impact on a person’s ongoing employment or create a reputational risk to your business.

By taking the step to appoint an external Workplace Investigator the business is also sending a clear message that may have broader cultural or governance implications post workplace investigation.

External Workplace Investigators are better placed to ask robust questions without being influenced by internal reporting lines, workplace dynamics or perceived bias about the people involved. They are also highly skilled at defining the investigation scope, managing interviews professionally (and where required, in a trauma informed way), assessing and testing evidence, before providing report findings that business decision makers can rely on with greater confidence.

In summary, the appointment of an external Workplace Investigator can help strengthen trust in the complaints process and reduce perceptions of bias that will assist you in putting in place foundations that remain in place well beyond the investigation process

What does this mean for your business?

– Act on complaints early by carrying out a preliminary assessment to help define the nature of the complaint, identify any immediate risks and determine the most appropriate next steps.

– Be clear on whether Whistleblower obligations apply so the right protections can be put in place from the outset.

– Consider whether leadership conduct or broader governance issues have the potential to impact on your investigations, particularly where concerns involve Senior Managers or employees in more sensitive and client facing roles.

– Review whether your policies, reporting pathways and training remain fit for purpose so employees understand how concerns can be raised, how they will be handled and by who, and what protections may apply to them.

– Consider whether external investigation support is required where impartiality, credibility and/or instilling stakeholder confidence at a time of crisis is necessary.

How Azuhr supports workplace investigations

Azuhr works with businesses to conduct independent workplace investigations into a range of sensitive matters, including bullying, harassment, discrimination, misconduct, grievances and broader workplace conduct concerns.

Our Investigators bring an external perspective, a practical approach and the experience to manage these matters with integrity. We understand that no two matters are the same, and that the right approach depends on the nature of the allegations, the people involved and the broader workplace context.

Our robust approachis focused on demonstrating independence, ensuringprocedural fairness while strengthening confidence. We work with clients to establish an investigation process that is fit for purpose, proportionate to the issues at hand and is legally defensible. This includes gathering and assessing evidence carefully, engaging with participants respectfully adopting a trauma informed approach, and providing clear findings to support businesses with informed decision-making.

Where businesses might face increased scrutiny because of the seniority of those involved, the sensitivity of the matter, or the need to reinforce trust to stakeholders, our Investigators can provide a level of objectivity that is difficult to replicate internally. We also understand the importance of handling these matters in a way that is rigorous yet still in line with best practice, so organisations can move forward with confidence post the Investigation process.

For an initial chat with one of our Investigators, please get in touch.

Adam Tsui
Senior Consultant
Azuhr