Are former employees obliged to participate in internal investigations?

When investigating allegations of misconduct or other wrong doing it may be necessary to speak to people who are no longer employed by your organisation.

Often former employees are reluctant to participate in such investigations as a result of concerns over:

  • whether they may be personally implicated in some form of wrong doing as a result of the information they provide during the investigation;
  • the time and effort that may be involved, along with any costs they may incur; and/or
  • the impact of their participation on their relationship with the person being investigated, their own reputation or their current employment.

This raises the question of whether you can compel a former employee to participate in a disciplinary or misconduct investigation...?

The short answer is - generally you can’t.

Absent some statutory or contractual power, in most cases you have no power to compel a former employee to participate in an internal disciplinary or misconduct investigation. Such a person has no obligation to assist in relation to your investigation or to provide information which may be helpful to resolving some of the issues arising from the investigation.

This can create serious difficulties for organisations when investigating complaints of harassment, bullying or other wrong doing, especially when the former employee is a key (and sometimes the only) witness in the matter.

So what, if anything, can you do to help convince a former employee to assist in an investigation?

The first step is to get an understanding of the person’s reasons for initially not wanting to participate. The second step is to see what you can do to address or alleviate their concerns.

For example – if the employee is concerned about:

  • self incrimination - you could explain a little more about the purpose of the investigation and make it clear that you are not investigating their own conduct; where appropriate you could also reassure the person that no action will be taken against them even if it eventuates that they have personally have engaged in some form of wrongdoing;
  • the costs associated with their participation – you could offer to cover reasonable costs associated with time off work, travel, child care etc; or
  • the impact on their reputation or relationship with others – you could explain the steps that will be taken to ensure confidentiality and discuss whether or not the person’s identity as a witness will need to be revealed to the subject of the investigation.

The more information you can give a person about the purpose of the investigation and how their evidence might be able to assist the more likely they may be to agree to participate.

Ultimately the choice rests with the former employer however, and in some cases it might not be possible to convince them no matter how hard you try. In these situations you simply have to proceed with your investigation using the evidence you do have access to and make decisions based on that evidence.

In situations where a matter involves some form of external dispute resolution (eg a proceeding before a court or tribunal) it will usually be possible to compel former employees (and other relevant persons) to give evidence to assist in the resolution of the matter. This is typically done by issuing a subpoena or otherwise by a direct order from the relevant court or tribunal under their statutory powers.

Kristin Ramsey is a Director at Hynes Legal and heads up the firm's Employment and Workplace Relations team. She predominately acts for medium sized businesses in the hospitality, retail, health, fitness, franchising, engineering and aged care industries.  

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Comment by Bernard Keith Althofer on December 2, 2016 at 7:59

Very good points raised here.

The flip side is that some former employees who have made a complaint whiilst still employed at an organisation still want to pursue their complaint even though there has been a thorough investigation. In some cases, an individual may not be satisfied with the outcomes of the investigation and the information provided to them, and they continue to seek support from external providers whom they believe will 'go in to bat for them'. For example, a recent situation involved an individual who 'left' an organisation but claimed to be still employed as they believed their contract of employment had never been officially terminated and that they were still on some form of approved leave.  At the same time, they had retained access to organisational files, managed to copy those files, and files they could not copy were obtained through Right to Information.  Despite claiming to have a legal advocate, an individual can continue to a perceived injustice, and if those they are seeking to draw into their net decline involvement, they then being a campaign to 'smear' that person or persons.

In terms of getting that person to participate in additional investigations or even to make further complaints if they believe they have not been afforded procedural fairness, or that they believe some part of the investigation was (in their words) 'corrupted and influenced by the powers to be', it is difficult to sway them. It is even more difficult when there has been a passage of time from when the investigation was finalised e.g. 8 years, to a current time when they are intent on a predetermined course of action.

Some individuals simply want to walk away from an organisation wanting nothing more to do with the organisation or anyone who works there.  In some cases, they do this to keep the door open on the off chance they might go back.  In other cases, they may believe that by maintaining a silence, they will be seen as not being involved particularly if they were a witness.  Some who have been targets do not want to continue reliving the incident so will avoid being involved in any part of an investigation.

It is difficult encouraging individuals to be courageous and speak up.  However, if individuals maintain their silence, nothing will change. Sadly for some targets, it requires exposure to the harsh realities of what is really involved in changing behaviours, so it is important that those being requested to be involved in an investigation, be provided with appropriate support, both internally and externally.

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