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Article:

Conducting Misconduct Investigations - Hints to delivering sound investigative solutions

11 January 2018

Oscar Persichitti, Manager, Advisory |

Following years of providing training and guidance to many clients across the private and government sectors, and in recent times, having been contracted to assist with misconduct investigations within WA government agencies, it is probably fair to say I have seen benchmark standards, and perhaps some ‘works in progress.’

The Corruption, Crime and Misconduct Act 2003 (CCM Act) requires the Principal Officer of government agencies, to notify and report on suspected misconduct to the Corruption and Crime Commission (CCC) for serious misconduct, or the Public Sector Commission (PSC) for minor misconduct matters.  The framework for managing misconduct within the CCM Act, is such that principal officers have primary responsibility for preventing and managing misconduct within their own agencies.

Similarly, the WA Public Sector Management Act 1994 (PSM Act) also requires government authorities to deal with breaches of misconduct. In short, this is to either investigate the matter, take improvement action with respect to the employee, or take no further action (if deemed appropriate).

For matters progressing to investigation, an investigator is appointed to establish the facts in order to prove or disprove the allegations, and if required, recommend any preventative solutions to mitigate future similar behaviour.

In fairness to the person subject to the complaint, the investigator themselves, and the agency, it is recommended that investigators inquiring into such matters, know the do’s and don’ts of best practice investigative techniques.  With likely disciplinary actions ranging from reprimand, right through to dismissal, consideration should be given to the possibility that any outcome could be challenged or appealed, or at the very least, scrutinized by others.

Delivering Sound Investigative Solutions – Top Tips

With that in mind, the below list highlights some of the do’s that are likely to deliver sound investigative solutions.

  • Determine the nature of the investigation and the relevant policies/regulations you are investigating against.  Within the government sector, this could mean actually determining whether or not the employee is employed under the PSM Act or another regulation.
  • Ensure you know the investigative outcome.  This will provide clear direction, focus and boundaries.
  • Identify elements of proof required to substantiate (or not) the allegation(s).
  • Have a plan of action that ensures the investigation is completed in a timely manner and remains confidential.
  • If applicable, ensure you visit the site of the incident to obtain physical evidence and/or to gain an appreciation of the environment.
  • Think about procedural fairness – Ensure you can ‘show’ you have been fair and unbiased to all parties. Collate material evidence and base the findings on logical probative evidence.
  • Interview all available witnesses to ensure you gather their account of what happened. Make sure you plan the interview, have identified objectives and record the interview appropriately.
  • Obtain other corroboratory evidence wherever possible. You may have to think outside the square!
  • Interview the alleged employee (respondent) to provide them the opportunity to give their account of the incident, an explanation for their behaviour, or to refute the allegation.
  • Ensure you have documented each step of the investigation, including all actions taken, interviews conducted, and decisions made during the course of the investigation.
  • Prepare an investigation report that presents an accurate account of the findings and a recommendation of the outcome.
  • Apply the appropriate standard of proof. In most disciplinary investigations, allegations must be proved ‘on the balance of probabilities.’ For serious matters, it is important to have a working knowledge of Briginshaw v Briginshaw (1938) 60 CLR 336, otherwise known as the ‘Briginshaw test.’  In short, the High Court cautioned tribunals against making decisions based on mathematical probabilities alone and independent of any ‘actual persuasion of its occurrence or existence before it can be found….. and independently of any belief in its reality..’ For investigators, this means corroborating evidence wherever possible, and ensuring findings are based on material evidence, rather than mere speculation or suspicion.
  • Be aware that matters can be appealed before an appropriate tribunal, who may find any subsequent disciplinary action or dismissal unjust or unreasonable, which could potentially result in payment of compensation or damages.

For more information or a confidential consult, please don’t hesitate to contact me or send through an email - Oscar.Persichitti@bdo.com.au