If you’re a school principal, HR leader in a tertiary institution, or board member in Australia, New Zealand, or somewhere else in the Asia-Pacific region, facing a staff complaint that could amount to misconduct, one of the most important decisions you’ll make is how to handle the investigation. Do you manage it internally? Bring in a lawyer? Or engage an independent workplace investigator? The truth is, many education leaders aren’t quite sure what an external investigator does, when to engage one, or how the process actually works. You’re likely asking questions such as:
- Can the investigator interview people inside and outside my organisation?
- How do I brief an investigator?
- Will the investigator’s report stand up to scrutiny from a registration board or regulator?
In this article, I’ll walk you through what it’s like to work with me as your independent workplace investigator – from the first phone call to the final report. You’ll see how I approach workplace investigations in education settings and gain the clarity and confidence to move forward.
Engaging an Investigator
What should I expect during the first call with an independent investigator?
Your first step is an initial consultation with me. This phone call is confidential. It’s free and there’s no obligation to work with me after the call. The conversation can take place over Microsoft Teams, Zoom or on the phone. It usually takes around 30 minutes.
I’ll ask you some questions about the matter you’re dealing with. I’ll tell you whether it’s something I can investigate and then I’ll talk you through the investigation process. If you’re located a long way from me, we’ll discuss whether the investigation can be completed remotely.
What information do I need to give the investigator at the start?
During our conversation I’ll ask you to outline your situation. It helps to be prepared before making the call. Be ready to answer questions like:
- What is the nature of the allegations?
- How many reporting parties are there?
- How many responding parties are there?
- When is the behaviour alleged to have occurred?
- Where is the behaviour alleged to have occurred?
- How many witnesses do you think need to be interviewed?
- What other forms of evidence are likely to be available?
I will also ask you to tell me about the people involved, but it’s important to protect their privacy as much as possible. Although our conversation is confidential, you usually only need to tell me the roles of the various people involved. You generally don’t need to give me specific names initially.
For example:
“A teacher has made a complaint against a member of the senior leadership team.”
“A second-year student has made an allegation against a senior lecturer.”
“We’ve got concerns about the behaviour of one of our support staff.”
In some cases, I will ask whether you’ve engaged a lawyer. Many of my investigation are conducted alongside a lawyer. I’ll explain more about that later in this article.
Sometimes clients will send me an initial email containing all this information to cut down on time during the call.
Understanding the Investigator’s Role
What does an independent workplace investigator actually do?
Let’s start with what an independent workplace investigator does not do.
I do not offer legal advice. I am not a lawyer. Offering legal advice is the role of a lawyer and it is a very different skillset to conducting an investigation. Keep reading and I’ll explain more about how I work with your lawyer and why I recommend engaging a lawyer to complement my work.
I do not offer counselling to the people involved in the investigation. That’s the role of a counsellor, psychologist, chaplain, or another welfare professional. These services are often offered as part of an Employee Assistance Program (EAP). It’s also important to keep these roles separate. I have to be impartial and cannot be seen to be “taking sides”.
My primary role as an independent workplace investigator is to find facts. I gather evidence, analyse the evidence, and determine whether the allegations are substantiated. In other words, I tell you whether or not the allegations are true. Or to what extent they are true.
Can I involve a lawyer alongside the investigator?
My preferred approach to workplace investigations is what I call a “hybrid approach”. This means you engage a lawyer to work independently but alongside me. The lawyer is engaged before, during and after the investigation to provide legal advice without actually being involved in the investigation process itself.
The lawyer might help you draft the Terms of Reference for the investigation and serve letters of notice to the employees involved. A lawyer understands the bigger picture in terms of your risk and the intricacies of employment law in your context. They can help you shape an investigation that is going to give you the information you need to make good decisions. They will ensure your communication with your employees at this point is worded appropriately. These are discussions you can have with your lawyer independently of me to ensure I remain completely impartial and objective. My role is very defined: to find facts.
A lawyer can also provide advice throughout the process. There may be points during the investigation where I ask you for instructions. For example, I may recommend the scope of the investigation be expanded. This needs to be approved by you, as the employer. Having a lawyer to advise you at this point can be very helpful.
A frequently asked question is whether you need to stand down an employee who is under investigation. There are some occasions where you will need to consider this course of action. The allegations could be particularly serious allegations, warranting a stand down. Or the employee may pose an ongoing risk to children and young people of your institution as a whole. Perhaps there are grounds to believe they are attempting to influence the investigation process through intimidation or bribery. A lawyer can assist you in working through this process in a way that complies with local employment law regulations.
At the conclusion of the investigation, you will be required to make some important decisions. You may need to move into mediation. Or take disciplinary action. Even terminate the employment of a staff member. Or you may decide to take no action, which you’ll need to explain to all the parties involved. It’s not my role to advise you on these decisions because I need to remain an independent fact-finder. This is where engaging a lawyer can also be useful.
Investigation in Practice
What does a workplace investigation look like step by step?
A workplace investigation usually starts with the drafting of Terms of Reference (TOR). The TOR act as a blueprint for the investigation. They outline the allegations and make the process clear to everyone involved.
Sometimes the TOR will be shown to the reporting party and the responding party. Sometimes the parties are given the opportunity to provide feedback on the TOR before the investigation commences. One of the reasons for this is that it ensures that all the parties are fairly informed about the nature of the allegations and the investigation process. This is part of what it means to be procedurally fair.
Once the TOR are agreed, I commence my investigation. You’ll need to provide me with copies of all your relevant policies and codes of conduct. This enables me to plan my investigation, including interviews.
In a workplace investigation, interviews are absolutely central to the process. An investigation involves interviewing the reporting party, victim or complainant. I will interview witnesses identified by you, but also witnesses nominated by other people involved in the investigation. I will interview the respondent and obtain their account. Sometimes certain people will need to be interviewed more than once to obtain further information or give them an opportunity to respond to information provided by others.
In the education environment, there can be a range of people involved: staff, students and families. You need to consider whether you’re happy for me to approach people outside your institution for information. Sometimes there are people who aren’t your employees who can provide relevant information.
Many investigations can be conducted remotely. It doesn’t matter if you’re located in the middle of the outback or on a remote Pacific Island, if you have internet access, I can investigate. There are limitations to remote investigations, but they’re case dependent. We’ll work together to find a solution.
Evidence can also come in other forms: CCTV, emails, physical documents. It’s your job to supply me with all the information I need to establish the facts. I will often ask you to nominate a liaison to obtain documents at my request. It can be helpful for you to think about who this might be early on in the process.
At the conclusion of the investigation, I will write an investigation report. The report will outline the nature of the allegations, the methods I have employed to obtain evidence, my analysis of the evidence, and my findings. Usually, my report does not contain recommendations about what action you should or should not take. That’s your job and that’s why I recommend you engage a lawyer.
What should I avoid doing during an investigation?
There are some things you should avoid doing during an investigation to avoid damaging the integrity of the process. Here are some of the most common mistakes I see.
Don’t breach privacy
In the education sector especially, there is often pressure from people outside the process to disclose information. Avoid telling people outside the process about the investigation. At the very least, this will be a breach of trust and will damage the culture of your institution. At worst, you could create legal issues by breaching the privacy of those involved.
Don’t conduct your own investigation
If you’ve engaged me to conduct an investigation, it’s because you’re looking for answers. You have a problem that needs to be solved. It’s easy to become impatient and to take matters into your own hands. But it’s important to avoid conducting your own internal investigation alongside my process. Do not ask the people involved in the investigation questions before or after I’ve interviewed them. Don’t start drawing your own conclusions about what has happened. This could influence people and damage the integrity of the process. You’re paying me for a reason. Let me do the job for you.
Avoid perceptions of bias
It’s important that I remain as independent and impartial as possible. For this reason, I will keep my communication with you to a minimum. I will provide you with progress updates. I will advise you of any additional allegations that arise or risks you need to consider. But I won’t talk to you about potential outcomes. It might be tempting to give me your theory about what you think has happened. Or what action you might need to take at the conclusion of the investigation. Those are not conversations to have with me. It’s important to maintain distance and avoid any perception that you are influencing the investigation process.
How long does a typical workplace investigation take?
Asking how long a workplace investigation takes is like asking how long is a piece of string. It depends on the nature of the allegations, the number of people to be interviewed, the level of evidential analysis required, and the likelihood of additional allegations being raised.
The answer is always “it depends”.
The quickest investigation I’ve completed took several weeks. The longest took months. There have been several workplace investigations examined by New Zealand and Australian regulators recently in which the processes were criticised for taking too long. These investigations took more than a year.
So, allow anywhere from a few weeks to several months.
Reporting and Outcomes
What’s included in the final workplace investigation report?
The quality of the final investigation report is one of the factors that sets apart an average investigator from a great investigator (alongside their investigative interviewing experience). An investigation report that lacks clarity, detail and depth doesn’t give you the information you need to make a decision and move forward. On the other hand, you also don’t want your investigator wasting two weeks writing a novel containing full transcripts of every interview and detailed analysis of every applicable piece of case law. I once heard of an investigating lawyer writing a 200-page report that cost his client over NZD$100,000! This is completely unnecessary and a waste of money.
The final investigation report is the primary “deliverable” you’ll receive from me. My report will usually outline the allegations, my investigation methodology and my findings. My findings will be linked to the supporting evidence so that you can be sure they are well-founded. Where there are risks to be highlighted or questions to be answered by your lawyer, I’ll highlight those for you.
The report I produce for you is written to survive scrutiny at any level. It’s based on facts and evidence and avoids opinion or emotive language. With more than a decade of investigation experience, I’ve written countless reports that have been pored over by lawyers and produced in Court and I seek feedback on my reports whenever possible. This is where I earn the money you pay me.
Conclusion
Handling allegations of staff misconduct in an educational setting is one of the most challenging responsibilities school leaders, HR professionals, and board members face. The stakes are high – legally, ethically, and culturally. You need an investigation process that’s independent, procedurally fair, and built for your school or tertiary context.
Engaging an experienced, impartial workplace investigator is one of the best ways to ensure your investigation is thorough, defensible, and handled with integrity.
If you’re unsure whether you need an independent investigator or want to talk through your situation confidentially, get in touch for a free, no-obligation consultation. Together, we’ll determine the best path forward so you can act with confidence and care.
