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Corporate Investigations

Written by: Brendan Murphy

Article Overview: All businesses are people organisations and we know that people are vulnerable to idiosyncracies, wrongdoing, accidents, malice and plain old stupidity. However, the corporate environment is a paralegal environment and when investigations become necessary, having the right tools and approach are essential. This article is the first article written for Evan Carmicheal and briefly explores the nature of corporate investigations and their conduct.

Corporate Investigations

We all know that there are bumps in the road, people do wrong things, people perceive that they are wronged, laws and regulations get trampled upon in the rulabula of doing business. However, when the alarm goes off, many in business are at a loss as to how incidents should be investigated. This article is by no means a full treatment of investigations, but does cover the ground.

Once an incident or complaint is made, the first action is to identify someone who will investigate the claims and the responses to claims. The personality and role of this person is critical. Whoever is nominated and put in place, they must be outside the decision making chain as they must report first to a decision maker (line manager or sectional head or team) and to an appeals person or group, the Managing Director or Board.

Without losing my drift, I should explain that whatever happens, any decision to impose sanctions for a wrongdoing must be subject to an internal appeals process. Companies cannot operate on the basis where a person or group of persons are judge and jury, for lots of reasons, most importantly, legal ones.

Once appointed the investigator has to be clear on their role. They are independent and removed from the day to day corporate consideration. their role is to objectively collect information and to present it to the decision maker.

Of crucial importance is the management of defamation risks. Allegations are very dangerous things and a badly executed investigation can result in defamation actions. And defamation actions are hard to defend and are really expensive, so don't go there!

Often, the investigator is exposed to high emotion, stress and pressure, not least because all parties are entitled to representation and are naturally responding emotionally to either the incident or the claim of an incident. In my experience, a parent, trade union official or a lawyer are very much the same and you need to set out a clear method of investigation before you start, otherwise the pressure will damage the investigative process. This method of investigation must be communicated to all parties and submissions considered. However, at the end of the day, it is for the investigator to apply the process for it is they who will be defending it in another forum, be that internally or in a court room.

The investigative process must operate against a number of criteria. It must be fair, open, transparent and objective. This said, it must also be highly confidential and protected from internal or external interest. Remember, any actions and risk management initiatives arising from the investigation report depend on the investigation. A poor quality investigation will really compromise the company and many a reasonable action has been undermined to the point of high levels of compensation because the investigation was flawed.

However, the starting point of the investigatve process lies within the person's contract of employment and the employment handbook provided to the employee when they started (or its revisions since appointment). Some studying is required to ensure you get this right, and the reasoning for your investigative approach must be included in your report, since the process of investigation must be both explained to others and be consistent with the policies and procedures accepted by the employee when they signed their contract.

When identifying those people, documents and materials to be included in the investigation care must be taken to avoid trawling, especially witnesses, as the motivations of people are many and varied. Typically, those who were in proximity to the incident are readily identifiable. Don't go interviewing everybody you can think of, especially those who weren't there!!! In my experience the central witnesses do make themselves known fairly readily, but not always.

Submissions and cross examination of witnesses are part of the investigation process which pose difficulties. Only verifiable and credible evidence is valuable, hearsay is a problem, especially if actions are to be taken against someone. This said, in instances such as harassment, one person's testimony is acceptable, so long as no evidence of motivation, other than telling the truth is found. By this I mean that no evidence of bad relations is provided that would suggest that the claim is motivated by something connected by the disagreement between the parties, rather than by what actually happened.

Having considered the evidence, preparing the report must be done for a third party audience, not only within the chain of command inside the company, but also lawyers and judges. A well written investigators report quells many lawyers with threats of litigation in their voices. It also pacifies the company lawyers, who often make terrible investigators but good assessors of reports.

Investigators need to mindful that compiling the report is part of the process. Assembling the evidence, cross examination and preparing the narrative for the findings often highlights gaps and inconsistencies. Where these are found, the investgator should go back to the person to seek clarity and more detail.

The editorial policy for an investigators report is objectivity. It is written for those who will make judgements on the matters contained within it. Remember, years later, a report may be central to a highly charged and costly legal hearing, so get it right before you conclude it. Take a little longer but don't prevaricate, as justice delayed is justice denied.

On conclusion of the report it must be handed to the decision makers. These decision makers will consider the report and evidence. They typically will hear witnesses in the presence of the protagonists and their representatives and will allow cross examination by the representatives of the protagonists.

On cross examination, you have to be really careful. One extremely aggressive trade union official sought to bully and harangue a witness during cross examination. I had no hesitation in telling him to sit down, back off and treat the witness with respect. I also told the witness to ignore his behaviour and to only answer reasonable questions properly put. He does'nt forgive me yet for my handling of his tirade, but at least the client and the witness was protected from a flawed investigation.

Remember, the function of the decision makers is to consider the investigators report and to hear witnesses. When this is complete they must consider the matter through the practices and procedures laid down in the contract of employment and the employee handbook given to the employee when they started, or updated versions that they have accepted.

Once they have concluded, they make a decision in line with the contract of employment and issue a notice that states their intention to take an action, whether this is a sanction or not, against people.

This notice of intent is issued to the person or persons to whom it applies. These people are given 7 days to given notice of appeal, which will be heard by the appeals person or group.

This appeal person or group reviews the investigators report and the decision makers report. The people who are involved are invited to make a submission appealing the decision makers report. This can be heard in person or in writing. If the investigator and decision makers reports are thorough, I prefer to specify an appeal in writing.

Once the appeal is heard, the person or group gives notice in writing of whether they support the findings of the decision makers and impose their sanctions, accept the findings but modify the sanctions in some way, or reject the reports and dismiss the sanctions.

After that....well on to the next challenge!!

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