Welcome to part 7 of our workplace investigation series, where we take a look at some of the issues we have experienced during investigation interviews.
How to deal with uncooperative people
There are many reasons a person may refuse to cooperate with an investigation, including fear of what might happen to them if it becomes known that they assisted with the investigation.
If a person refuses to answer questions, the investigator is not devoid of options. For example, an authorised manager may direct an employee to answer questions concerning the performance of the employee’s duties, regardless of the possibility that, in answering questions, the employee might tend to incriminate themselves. In the event of a refusal to comply, disciplinary action may be taken.
However, a matter that may arise is the common law privilege against self-incrimination being invoked by an employee where they refuse to answer questions on the ground of genuinely and reasonably apprehending a real and appreciable risk of criminal prosecution. Employers should seek legal advice if faced with this situation.
Should a third party be present?
Interviewees will sometimes ask if they can have another party, such as a lawyer or a union representative, present during the interview. The presence of a third party may help the person feel more comfortable and thus make the interview easier to conduct.
When dealing with a third party an investigator should:
make it clear to the third party that their role is simply to observe; not to take part in the discussion or interview;
make sure the third party understands that their role is not to advocate for the interviewee during the interview;
ensure that the third party does not suggest answers or lead the interviewee;
not allow a third party to be present during an interview if the proposed third party is a person likely to be interviewed in relation to the matter; and
seek an undertaking from the third party that they will respect the confidentiality of the issues discussed during the interview (if the third party will not or is unable to provide such an undertaking, they should not be allowed to be present during the interview).
In some cases a third party may be asked by more than one person to attend interviews. The third party should not be put in a situation where they could inadvertently (or intentionally) compromise the investigation.
Potential conflicts of interests can be avoided by asking the third party whether they have been asked to assist any other person; for example, a workplace union delegate may have been asked to support a number of participants. In such cases, discussions should be held before the interview begins to establish whether other representatives would be available.
An interpreter, when needed, must be (and must be seen to be) completely impartial, providing clear and accurate interpretation of the words spoken, including any emphasis in speech. The interpreter should be asked to sign a declaration regarding the interpretation given.
During the course of an investigation, information may be obtained that suggests that the interviewee has committed a criminal offence unrelated to the allegation being investigated or it may be determined that the matter being investigated is more serious than originally assessed.
Once a suspicion of a criminality has been established, the investigator should terminate or suspend the interview and seek advice from an authorised manager. If criminal offences are suspected and the investigation is not discontinued, there may be a risk of evidence being contaminated, jeopardising any subsequent criminal investigation.
If, during the interview, the interviewee indicates that they are tired or wish to take a break, a temporary halt to the interview may be called. On the record of interview, the time when the interview is halted and resumed and the reason for the break should be noted. It is best not to discuss the subject matter of the interview with the person during the break. When resuming the interview, the investigator should ask the person to confirm the fact of the break and what, if anything, the investigator said to them during the break that was relevant to the investigation.
Some practical tips
An investigator should:
remember that the purpose of an interview is to obtain answers in order to resolve the facts in issue – ask Who? What? When? Where? How? Why?
gather all relevant information; avoid temptation to just gather information that supports the complaint or alleged misconduct;
avoid making assumptions; if in doubt, ask further questions; and
resist any temptation to enter into discussion or argument with the interviewee; remain calm and polite and maintain objectivity.
Our next article, about concluding and reporting the investigation, will wrap up the series.