Bridging the Gap

When vulnerable groups are involved, some investigations require a sensitive skillset

Posted by Harriet Stacey in on December 22nd, 2015

There are special skills that come into play during any workplace investigative interview. Particular care is needed, however, when non-criminal elements of a child-related issue are under investigation. Criminal and civil investigative processes might both be required for the one workplace matter, and within each approach the challenges can be considerable.

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CHILD-RELATED COMPLEXITIES

At first it might seem unusual that a workplace investigator would need to get involved in an investigation concerning children. But if we think about it, the numbers of workplaces that either employ or interact with children are considerable; from schools and churches to fun parks and retail outlets. Care must be taken in such investigations to ensure that all criminal/ non-criminal aspects are well managed in the context of any vulnerable persons.

SPECIAL WORKPLACE ISSUES

The criminal/non-criminal divide in work-related investigations must be handled skilfully by all involved.
Criminal prosecution might seem like the only natural avenue to follow when a workplace issue relates to alleged child abuse. Yet often there will be non-criminal elements that come to the fore in such cases, related to misconduct, bullying, occupational health risks and the like. And very often these matters will need to be examined via a workplace investigation, regardless of the outcome of any criminal prosecution.

THE CRIMINAL ANGLE

In some cases, a criminal investigation will be carried out first where serious allegations are raised in the workplace. Understandably, police investigators employ interviewing techniques that are centred upon the criminal elements of the matter. Yet in many cases after a prosecution is dropped, workplace investigators are then left with investigative challenges such as:

  • Delays that can occur between the criminal matter and the workplace investigation.
  • Initial police focus in interviews upon criminality, which can bypass pertinent non-criminal issues.
  • Evidentiary issues flowing from differing standards of proof in criminal and civil matters.

SOME CASES IN POINT

In a recent case involving a staff member and the client of a sheltered workshop, a police investigation was conducted into allegations of sexual assault by the employee. The police understandably focused upon the potential criminal elements. They did not proceed with prosecution, due to issues of legal competence and limited prospects of prosecutorial success.

DILEMMAS OF TIME AND PROOF

Workplace investigators must work out ways to effectively elicit information that is relevant to the workplace issues.
The workplace investigator in this case was then faced with issues such as witnesses who were no longer available, permission to use statements being refused, plus continuing issues around witness competence. Interestingly however, the differing standard of proof in non-criminal matters – plus specific evidence gleaned about complaints processes – were sufficient for the workplace investigation to generate successful outcomes regarding certain staff.

UNSAFE HAVEN?

In another matter involving a member of the clergy, delay caused considerable issues for the workplace investigation and the manner in which interviews could be conducted. The case involved allegations being made against a priest in relation to his dealings with a young boy. After 12 months, including several delays between the prosecution’s evidence-gathering endeavours, a decision was finally made by the police not to proceed with the case.

TAKING UP THE NON-CRIMINAL CASE

The challenges then faced by the workplace investigator regarding the allegations in their industrial context were considerable. Taking up the case from the non-criminal point of view, the workplace investigator dealt with a number of difficulties around both time delays and prosecution-focused interview techniques. Despite these challenges, nuanced investigative interviews and evidence collection led to decisive action being taken on the non-criminal workplace issues. The principle in Briginshaw was carefully incorporated into all evidentiary activities carried out by the investigator, enabling appropriate action to be taken.

ANTICIPATE THE CHALLENGES

Between criminal and non-criminal investigations there can be a number of differences that need to be managed with care. Workplace investigators must work out ways to effectively elicit information that is relevant to the workplace issues. And the emphasis in work-related interviews will necessarily differ from interviews carried out by police. Employers should ideally act swiftly following police investigations to ensure that evidence and witnesses remain available to a workplace investigator. The criminal/non-criminal divide in work-related investigations must be handled skilfully by all involved. It is certainly worth the effort to get the process right – particularly when children and other vulnerable persons come into the equation.

Harriet Stacey
Harriet Stacey

Owner, WISE Workplace

Harriet Stacey is a founding member and Chief Executive Officer of WISE Workplace, a national Australian firm providing investigative services in relation to workplace misconduct since 2002. She has designed, implemented and managed the workplace investigations processes for leading government agencies, corporations and the not for profit sector, trained thousands of HR and compliance professionals to conduct investigations and has conducted and overseen over a 1000 investigations of fraud, discrimination, bullying and harassment, sexual harassment, child protection and inappropriate use of ICT resources.

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