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INTERNAL DISCIPLINE INVESTIGATIONS - PART 2 (31st March 2008)
The following article covers the investigative process of internal discipline investigations and should be read in conjunction with Part 1 which was published in the LKA Group October-November 2007 Newsletter and can be found under the news and resources section at www.lkagroup.com.au
2 THE INVESTIGATIVE PROCESS
It is essential that those charged with the responsibility of conducting an investigation are fully familiar with the process to be followed as set out within the relevant organisation policy.
Some policies make a distinction between “informal complaint reporting and resolution” and “formal complaint reporting , investigation and resolution.” This paper is concerned with the latter type of complaints which arise, possibly when informal resolution or discussion between the parties has failed, or when the complaint made involves serious allegations of breaches of organisation policy, or that the complaint is made against a senior member of staff.
Ideally the initial complaint should be made in writing, or if conveyed verbally to the Manager entrusted with the conduct of the investigation, careful notes should be made of the complaint by that Manager and, ideally, have those notes approved by the complainant. It is important to advise the complainant, and any other person who may be involved in that complaint, that they are entitled to have a support person present when making a statement or presenting their evidence. Such a person may be a union representative, fellow employee, lawyer or a friend.
If the matter is obviously one of seriousness, then the person against whom the complaint is made should be advised of the complaint in writing and sufficient detail be given so that the person concerned has a reasonable understanding of the nature of the allegations made.
2 (a) Obtaining Information - The 4 W’s
I suggest the key questions to ask of a complainant (and other witnesses where relevant) are the “4 W’s” (see article published by Ross Jackson, a partner in the law firm of Maddocks Lawyers referred to in Part 1), They are: What happened? When did it happen? Where did it happen? Why did it happen?
Before dealing with these matters I should stress that it is vitally important that the complainant and all other witnesses involved, including the person against whom the allegations are made, are instructed that all information supplied is done so on a strictly confidential basis and that each participant should be warned to maintain confidentiality at all times. Essentially this means that each person so involved is not at liberty to discuss any relevant matters with any other person. This requirement for confidentiality cannot be over emphasised.
2 (b) Statements
The investigation should start with the complainant. If he or she submits a written complaint, it should be carefully studied by the investigator to ascertain that all relevant information is contained in that document and all issues raised are clearly understood by that investigator. If not, the complainant should be invited to an interview to clarify any matters requiring further explanation or elaboration. Those matters should be reduced to writing by the investigator and signed by the complainant at the conclusion of the interview. The original complaint can be annexed to the clarifying statement so that, taken collectively, the issues and details are clear. Answers to the “4 W’s” obviously should be included.
If the complainant simply gives verbal information or submits a brief written note that he or she wishes to lodge a serious complaint, then an interview should be conducted and the complainant’s version of events recorded in writing. It is vital to listen carefully to the information provided and the answers given to any questions which may be asked and record the responses accurately. Where possible use the language used by the complainant. Clarify any points as you proceed (ie if a statement is made such as “when we were in the supermarket….”, ask, “which one”?). In other words try not assume facts from your own knowledge, experience or supposition.
It is important to ensure the complainant, and all other witnesses, including the person against whom the complaint is made, is given every opportunity to give his or her complete version of events. The interviews should be conducted in an environment where the person providing evidence feels comfortable. At the conclusion of all interviews have that particular witness read the statement carefully before signing it and make any alterations which may be requested. Then have the witness sign it and provide that witness with a copy of the statement.
Interview other witnesses by way of the same procedure. Most often it is appropriate to interview the person against whom the allegation is made as the last witness. This provides the investigator with the opportunity to place the details of all issues raised during the investigation to that person and provide that person with the opportunity to give considered responses.
2 (c) Relevance
It is perhaps unnecessary to stress that the information obtained from all witnesses interviewed is relevant to the initial complaint. This sometimes requires the investigator to make a judgment as to the nature of the information being provided and whether to exclude it or not. It is not entirely uncommon to interview a witness who is determined to tell his or her life story, or to make prejudicial or irrelevant comments about other involved personnel. In those circumstances the investigator must politely redirect the attention of the witness to the matters in issue and endeavour to maintain the focus of the witness on those issues throughout the interview process.
2 (d) Clarity
It is equally important to ensure that whatever the witness concerned may be saying is recorded accurately and is clearly expressed, so that such evidence is incapable of various and /or conflicting interpretations at some later time. This may require the investigator to question the witness closely as to the intent or meaning of some part of the evidence proffered. Having established what it is the witness actually means, that evidence should be recorded with the explicit approval of the witness involved.
2 (e) Paragraphs
As a matter of layout it is desirable that statements taken from witnesses should be broken into paragraphs which deal with a distinct part of the evidence or a particular issue. Long and unbroken paragraphs dealing with more than one issue can be extremely confusing. Consideration should be given to numbering paragraphs to facilitate ease of reference to a particular issue should that become necessary at a later time. Whilst not always possible, short sentences are often desirable.
2 (f) Annexures
It is frequently the case that some documentation, such as emails, diary notes, memos or letters may form a relevant aspect of the evidence in a particular case. It is appropriate for a witness submitting such documentation to make reference to such documents in his or her statement and annex it to the statement. For example, “I have annexed the email to which I have referred in this my statement and it is marked with the letter “A” , or some such identifying letter or number.
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