Chasing rabbits as an investigator

Chasing every rabbit as an investigator?

A recent Fair Work Australia case (Deng v Westpac, 2018) again highlighted procedural fairness as a real consideration amongst courts and tribunals in dealing with things like unfair dismissal. It’s commonplace for courts to examine whether a person was shown natural justice during the investigation, regardless of whether the final decision was deemed right or not.

In the case of Deng, a mobile lending manager, he was dismissed due to breaches of the the bank’s code of conduct, information technology policy and other areas. While the Commissioner held that Westpac was indeed right to terminate Deng, failure to carry out a fair, unbiased and professional investigation impacted on the decision to order Deng’s reinstatement. In short, the Commissioner likened the process to a ‘star chamber’ and noted that certain witnesses were not considered in response to the evidence. As a result, the investigator was deemed to have made unfair judgements and relied on opinion evidence (her own mainly).

There exists many cases where procedural fairness is a central issue in an otherwise sound judgement or decision by a decision maker. And it’s not always unfair dismissals and HR related matters. I’m reminded of a Queensland Civil & Administrative Tribunal (QCAT) decision from a few years ago where council compliance staff (in animal management) failed to interview witnesses that were identified by the defendant in an order on a dangerous dog declaration.

As an investigator, you will inevitably have competing priorities and it’s rare that you’d have only one or two cases. Time is often an issue, but unwillingness or laziness should not be. Sometimes there’s pressure to complete investigations and sometimes there’s resource (both human and physical) issues that impact. There’s no simple way to guide your work as an investigator, as there’s a big difference between what must be done (legally) and what’s practicable to do in the circumstances. There’s no right or wrong answer.

However, a professional investigator should always consider the impact of not following up on something (i.e. taking a statement) and the legal implication that may have. I always teach my investigation students the difference between inculpatory and exculpatory evidence and advise them – at the very least – never to ignore evidence produced that goes against their own case. As for the rest, it depends on the circumstances.

Having a good knowledge of the principles of procedural fairness goes a long way towards minimising investigation (and then prosecutorial) risk. It’s a reason the concepts should be an integral part of all investigation training.

As for chasing ‘every rabbit down every hole’ it’s very much still a judgement call.

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