Background: Provide relevant background about the complaint or issue to be investigated
(eg: who it was received from and when).
Allegations: detail the allegations the investigator is being asked to investigate, including:
-
the nature and seriousness of the alleged misconduct;
-
whether it has occurred in the past or is still occurring; and
-
whether there are any known witnesses, documents and/or physical evidence to
support the allegations.
Investigator’s Role: define the investigator’s role to obtain and present evidence in
relation to these allegations in order to make findings of fact.
Deliverables / Reports: clearly articulate the deliverables (reporting requirements), who
the report should be provided to, and specify timeframes / milestones. This could include
an overview of what the report should contain.
Support: outline any support that will be provided to the investigator e.g. administrative
support, facilitating site visits, legal advice etc.
Communications: clarify communications & reporting channels
Integrity and Confidentiality: Clarify any guidance on the integrity of the
process, including
by conducting the investigation in an impartial and objective manner; ensure procedural
fairness is applied throughout the process; and by maintaining appropriate confidentiality.
Contacts: identify key contacts.
[See example TOR at Appendix 1. B of Managing workplace investigations publication).
For external investigations, it is recommended the terms of reference require the
investigator/s to prepare an investigation plan articulating their approach, timeframes, and
their terms of business e.g. hourly rates, estimate of hours required, other costs. The
investigation plan should provide an overall expected cost of the investigation, and be
accepted by the decision maker prior to the investigator being engaged.
Investigator Suitability
Factors to consider when determining the suitability of an investigator:
identifying the skills required from a prospective investigator prior to engagement
conducting a preliminary interview to determine skills and capabilities, ascertain relevant
expertise and verify qualifications
undertaking referee checks, if required
ensuring they have relevant insurances and licences if the external investigator is not
listed under a panel or other arrangement.
identifying and managing any actual or potential conflicts of interest.
When engaging an external investigator, it is recommended that the contract manager:
identifies the decision maker, determines the authority for the investigation, governance
of the investigation and the authorisation channels.
briefs the investigator and provides them with a copy of the APS Values and
Code of
Conduct and any legislation, policies, procedures and/or guidelines relevant to the matter
being investigated
advises the investigator of any internal agency supports to be afforded to parties such as
access to a support person and provision of a copy of the electronic recording or
transcript of their interview
maintains regular communication with the investigator and manages their performance
throughout the period of the contract
determines and agrees upon the process regarding the retention of records and
documentation with the investigator in accordance with agency record keeping
requirements and legislation
creates a plan to provide agreed regular updates on the progress of the investigation1 to
both the decision maker and participants.
The investigation plan
The first step for an investigator after reviewing the terms of reference and information
sent as part of the investigation referral is to formulate an investigative plan.
An investigation plan is as critical as the terms of reference and allows an investigator to
determine that they are on the correct path.
As part of planning for an investigation, the order of the investigation should be
considered. Whilst there may be occasions where the order changes to accommodate
extenuating circumstances, the order in which an ideal investigation is conducted is as
follows:
1. Obtain a detailed complainant statement.
2. Undertake a site inspection where relevant.
3. Review all documentary evidence.
4. Obtain witness statements (interviews).
5. Interview the respondent.
6. Review and analyse all material/evidence obtained during the investigation
(this may include documentary and physical evidence, or require visits to
relevant locations).
7. Conduct further investigation as required.
8. Prepare a report, including findings of fact, for the delegate.
Whichever way an investigator conducts an investigation, it is important that the
investigator obtains sufficient evidence and facts in order to make a finding on the
balance of probabilities.
Investigators should only take into account relevant information, and any conclusions
reached should be logically formulated. To this end, investigators need to ensure that the
employee and all key witnesses provide all relevant information. The decision to follow up
witnesses or consider additional material put forward by an employee is to be made by
the investigator in the context of the requirement to ascertain, as far as possible, the truth
of the allegations.
The investigation report
The investigation report should be succinct and clear. It should:
outline the authorisation, scope and purpose of the investigation
detail the complaint and set out the allegation/s
set out the evidence that supports or does not support substantiation of the allegation/s
outline if on the balance of probabilities each allegation is capable or not of substantiation
include relevant attachments.
[Refer to Appendix 2: Investigation Report suggested headings]
REFERENCES:
Managing workplace investigations: A practical guide for the Queensland public sector
(QLD)
A guide to engaging and providing workplace investigation services (QLD).
ACTPS Guide to Managing Workplace Behaviour (ACT).
https://www.ibac.vic.gov.au/publications-and-resources/article/investigations-guide (VIC).
https://www.ashurst.com/en/news-and-insights/insights/guidance-on-conducting-
investigations-remotely
Appendix 2: Investigation report suggested headings
Executive Summary
Terms of Reference
Background
Investigation Summary/Methodology
Decision on who to interview, the list of interviews conducted, documents
examined.
Allegations
For each of the allegations, include the
following headings:
Summary of evidence
Analysis of evidence
Findings and reasons
Summary of Findings
Recommendations (if relevant):
Attachments:
Attachments, including all documents relied on by you and any relevant policies
and procedures, should be indexed and numbered in the order they are referred
to in the investigation report (e.g. “Attachment 1”), and attached.
