Determine the scope of investigation. Once it is decided who will supervise and conduct the investigation, the investigative team’s first task should be to prepare and agree upon an investigative plan that outlines the scope of the investigation.
Preparation of an investigative plan ensures that the investigation remains on schedule and budget and there is no scope creep. Where any government agency or regulator has to be involved in the investigation, a detailed plan assists in demonstrating that the matter was traded seriously and responded appropriately.
Determine The Scope Of Investigation
An investigative plan helps keep the investigation on track and allows monitoring of the progress against a set timeline. The investigative plan also helps the team to ensure that no aspect of the investigation is overlooked and allows external parties, such as regulators, to monitor the progress of the investigation.
The investigative plan should be comprehensive and include details of which company operations and employees are potentially involved and what jurisdictions will be the focus of the investigation. It is also best practice to provide an overview of the type of information that will be reviewed and personnel or the designations that will be interviewed.
A detailed plan also helps in identifying relevant laws and confidentiality issues that may prohibit the collection of some forms of data or impose restrictions on transferring or processing data across borders. Before a detailed plan is prepared, short preliminary interviews are often conducted to understand the universe of relevant documents, reporting structures, roles and responsibilities, and IT practices and infrastructure that may be used during the investigation.
Considerations When Determining The Scope Of Investigation
Most letters of complaint are not written in a way that makes the allegations contained within them easy to investigate, and important details and particulars are frequently missing. Furthermore, it is critical to remember that the organization, not the complainant, should determine the scope of any investigation, as the organization is responsible for ensuring compliance with its policies and codes, as well as providing a safe working environment for its employees.
It is critical to consider the desired outcome before determining the scope of the investigation. As an example:
Is the investigator simply required to conclude that a specific incident occurred on the balance of probabilities?
If they determine that the incident occurred, are they then required to determine whether there was any violation of company policy?
If a violation is discovered, are they required to make a recommendation as to what action should be taken, disciplinary action or training?
Once these questions are answered, it will be much easier to define the scope of the investigation and produce a final report that provides the organization with everything it needs to take any further action.
How The Scope Shape An Investigation
For example, suppose an employee complains that their manager is bullying them, and the decision is made to use an internal resource to investigate. The investigator must also determine whether there was a violation of company policy. They are not, however, required to make any recommendations.
Bullying is defined as “a repetitive pattern of unreasonable behavior that may pose a risk to health and safety” in the company’s anti-bullying and harassment policy. The company is also aware that a similar definition of bullying exists in the Fair Work Act of 2009. (Cth).
As a result, the internal investigator may be given the following scope of a workplace investigation:
To determine whether employee X bullied employee Y in violation of clause Z of the Company’s Anti-bullying and Harassment Policy. Specifically, whether the alleged behaviors occurred on the balance of probabilities, and if so, whether they were unreasonable in the circumstances and may endanger employee X’s health and safety.
Please keep in mind that it is critical not to ask an investigator to make findings that they are not trained to make, such as requiring them to provide a medical opinion. However, in this case, it is likely that the investigator could make a determination about the risk’s existence.
Finally, once the findings have been made and the report has been provided to the decision-makers, the decision-makers may choose to provide the report to a lawyer who can assist in determining whether the behaviors may constitute a violation of the Fair Work Act 2009 (Cth) and, if necessary, provide advice on any disciplinary action that may be required.
All relevant lines of inquiry should be pursued, including the investigation of potential exculpatory evidence. Gather the most compelling evidence. Interview the complainant, the subject, and any relevant witnesses, and make sure they have ample opportunity to provide their account. The panel must ensure that it collects not only evidence in support of the complaint, but also exculpatory evidence, such as witnesses who exonerate the subject. Mitigating evidence, such as an expression of remorse and personal circumstances, are irrelevant to the question of whether there is enough evidence to support factual findings. However, the panel should still record potential mitigating factors and include them in the final report to guide management if a decision to sanction the subject is made.
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