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:
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:
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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