Even in companies with the highest ethical standards and model workplace policies, allegations of misconduct, misuse of property, theft or fraud, and allegations of other specific breaches of policies or procedures can and do arise.

When issues are identified, employers have an obligation to conduct a comprehensive and unbiased investigation into the subject matter and take appropriate action, as warranted by the results of that investigation.

When an issue does arise, management's first inclination is often to have an in-house lawyer or HR team member conduct an internal investigation. While legal and HR departments are both integral to a business, they are often tasked with conducting enquiries that fall outside their area of expertise. Inadequate, mismanaged or poorly executed investigations can have unintended consequences.

One of the most significant pitfalls of using in-house personnel for internal investigations is the potential for bias toward the employer. Whenever internal personnel are involved in investigating and / or attempting to resolve workplace issues, the potential for bias is increased simply because the lawyer or HR team member is ultimately employed by, and represents, the employer. A responsible investigator would never intentionally take action or steer an investigation in a certain way based on bias, however the potential is present. In the event the matter ends up in court, the lawyers on the other side could argue that the internal investigation was conducted unfairly, or that the results were unjust, due to the presence of bias.

Using in-house personnel for internal investigations can raise further questions about who the lawyer / legal department is really representing. Similarly, using closely aligned external lawyers for internal investigations can prove problematic for employers, primarily because of a real or perceived conflict of interest.

For the reasons set out above, neither in-house personnel nor external lawyers should be directly involved in investigating sensitive employment related issues. While the employer’s legal and / or HR departments should be made aware of, and kept apprised of, the investigation's progress, actual investigation related activities are best handled by an independent and appropriately licensed professional investigator.

At QNA, we offer tailored solutions in relation to a range of issues, including but not limited to, allegations of misconduct, misuse of property, theft or fraud, and allegations of other specific breaches of policies or procedures. For further information, please call us on + 61 2 9212 5000 or write to us here.