International learnings from the Association for Workplace Investigators (AWI) conferenceOctober 23, 2017
I recently attended the AWI conference in Los Angeles. Attendees at the conference were primarily from the United States (U.S.), with a few from Canada and a smaller contingent from Australia. I was a member of an international panel looking at the impact of location and jurisdiction on the way in which workplace investigations are conducted. It was surprising to me, though in hindsight I am not sure why, that there was a high level of interest in the way we conduct workplace investigations in Australia. That, or they were just amused by my foreign accent (which I maintain I do not have) and any excuse to hear me speak was a good one.
Compared to our colleagues in the U.S., it is clear that we have much more consistency across states and territories than exists in the U.S.. In Australia, our application of the principals of natural justice to workplace investigations provides a high level of consistency across all jurisdictions. Although we do not have a statutory framework per se, for the conduct of workplace investigations, the fact that we have a federal industrial relations system, promotes consistency across states and territories, at least in the private sector where disputes about workplace investigations are often resolved by the Fair Work Commission. Where public sector employees are covered by State Tribunals, we see that the process of a workplace investigation is primarily the same as that expected of a workplace investigation in the private sector. If anything, the policy frameworks in the public sector raise the bar for process and quality in workplace investigations even higher than that which applies in the private sector.
In the U.S., things are very different. There are significant differences between requirements for workplace investigations between States. Some States have stringent statutory regulation and some States have no regulation nor minimum requirements. This creates a challenge for workplace investigators working across state boundaries. Where there is no regulation nor minimum requirements, the employees have no guarantee of a fair and unbiased investigation. Members of AWI of course, have the benefit of education and training in best practice, however I do have to wonder what happens where investigators in such jurisdictions do not have the benefit of such education and guidance. Here in Australia, the universal requirement that workplace investigations be conducted in such a way that natural justice is provided to all parties, provides broad consistency in process and the Industrial Tribunals provide a mechanism for quality review.
However, what is very similar across all of the countries represented on the panel, are the challenges that all workplace investigators face in dealing with the emotions of the various parties which invariably attach to a workplace investigation. We also share the challenges of ensuring that findings are made on evidence and not supposition, of ensuring independence and avoiding bias. The requirements for natural justice make these challenges, other than dealing with the emotions of the situation, easier for us in Australia. The challenge of dealing with the emotions in an investigation are more complex, and will form the basis of my next blog, so stay tuned.
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