Internal investigation by the registered organisation

To investigate the matter internally, the registered organisation may use the following guide and investigation plan template. 

If the organisation is unable to investigate the matter or it is inappropriate to do so, the organisation should consider engaging an external party to conduct the internal investigation, or report the matter to an appropriate government agency.

The organisation should familiarise itself with its rules and policies 

Identify any rules and policies the organisation has in handling such matters. 

Not all organisations have rules and policies regarding internal investigations, but if there are such rules and policies, follow them.

Understand the situation and allegation

Clarify the concern and the kind of resolution the person is seeking. 

Consider if the matter is a:

• service complaint
• personnel or human resources grievance issue
• breach of internal rules or process
• report of disclosable conduct.

Different matters require a different level of response.

When speaking to the person who raised the matter, gather as much information as possible.

This includes:

• name and contact details (though they may choose to remain anonymous)
• specific information about their concern, including dates and times
• people involved and witnesses
• other relevant information and evidence.

Assess the wellbeing and safety of the people involved

Consider the wellbeing and safety of the person who reported the matter and anyone else involved. 

If the person raised concerns for their wellbeing or safety, take steps to address these concerns.

This could include:

• moving the person to another role or area
• directing the person to available support services such as the employee assistance program (EAP) or similar
• providing the person with the details of the Whistleblower Protection Officer (WPO) or similar, if the organisation has designated one.

Define roles

Clearly define the roles and responsibilities of those involved in the investigation of the matter. Read our guide on roles and responsibilities for investigating protected disclosures.

You should ensure that the investigator has:

• the appropriate authority to conduct the investigation in accordance with the organisation’s rules
• access to relevant information, systems and tools to gather evidence on the matter
• the required knowledge of the organisation’s internal rules and processes.

Avoid conflicts of interest

Before starting any investigation, the nominated senior officer and the investigator should consider whether they have any actual, potential or perceived conflicts of interest. These may prevent them from objectively and appropriately dealing with the matter.

Also consider the perception of others who may become aware of any investigation. Would they perceive the senior officer and investigator to have an actual or potential conflict of interest that prevents them from objectively and appropriately dealing with the matter? 

If there is a conflict of interest, the person must remove themself from the investigation – whether the conflict is actual, potential, or perceived. 

Follow the required timeframes

The organisation should conduct the investigation in a timely manner and in accordance with any timeframes set out in its rules and policies.

Select an appropriate investigative approach

The nature of the investigation approach depends on the issue raised and the appropriate outcome.
Where appropriate and possible, try to come to a resolution. 

It may not be necessary to continue with an investigation unless there are systemic or serious issues that require full investigation. 

When a resolution can be reached instead of needing a full investigation, document the agreed action and outcomes.
If a resolution can’t be reached, determine the appropriate action to be taken. This could include:

• an internal review
• a full investigation.

The appropriate action will depend on:

• potential legal requirements
• the rules of the registered organisation
• the nature of the issue.

Plan the investigation

The investigator should outline:

• the allegations to be investigated
• the scope of the investigation
• an investigation plan.

The plan should be agreed by the nominated senior official and used as a ‘common sense check’ throughout the investigation.

If new allegations are raised during the investigation, the investigator must decide whether they will form part of the investigation scope, or form the basis for a new, separate investigation or be dealt with in some other way.

Make sure there is appropriate support and oversight for the investigator. 

To help you plan the investigation, download our investigation plan template. 

If more time is needed to complete an investigation these timeframes may need to be extended.

Ensure procedural fairness

Ensure the people who are the subject of the investigation are given an opportunity to put their case forward.

Use our notice of investigation commencing template.

There are 3 key components of procedural fairness that will always apply, even if they are not in the organisation's rules:

• The person(s) that the allegations have been made against must have an opportunity to respond formally before a final decision is reached.
• The decision maker must be impartial and free of actual or apparent bias. To avoid bias, the decision maker should not be the investigator.
• The decision must be based on the issues, evidence and facts. The organisation must be able to articulate the rationale for reaching a decision.

Gather evidence

Gather sufficient reliable information to properly explore and address the allegations.

Document all lines of inquiry and why they were or were not followed. This should include identifying the type of evidence examined. For example, this includes:

• written evidence
• photographic evidence
• oral evidence
• electronic evidence.

If the investigator organise any formal meetings, the organisation may want to use the notice to attend interview template.

Keep records

A thorough investigation is built on justified actions and confidential and secure records management. 

The nominated senior officer and investigator should agree on where and how records, documents and notes on the investigation will be recorded. 

Ensure all relevant information and decision making is recorded and securely stored for future reference. 

This is crucial if an investigation process or approach is challenged or if the Commission or another regulator contacts the organisation about the issue.

Findings of internal investigations

When investigating, each allegation should be assessed and a corresponding ‘finding’ made. Commonly these findings will be one of the three potential outcomes:

1. The allegation was substantiated (the weight of evidence suggests the allegation was more likely than not to have occurred).
2. The allegation was not substantiated (the weight of evidence suggests the allegation more than likely did not occur).
3. Inconclusive/unable to determine (the weight of evidence does not lead to a finding of substantiated or not substantiated).

For assistance in preparing the findings, use our investigation plan template.

Report recommendations

Prepare a document setting out the:

• background information
• scope of investigation
• methodology and approach
• allegations
• findings with relevant facts
• recommendations.

Recommendations could include:

• remedies for the person who raised the issue
• action to improve the organisation’s processes and procedures
• actions to address inappropriate conduct by an authorised party (for example, through training, an appropriate disciplinary process or referral to an appropriate external authority).

Decide on the actions to be taken

Once completed, the investigation report should be sent to the nominated senior officer or the relevant committee outlined in the rules of the organisation. 

This person must review the investigation report and decide what action needs to be taken.

They may review the investigation report alongside human resources, another officer, or the committee of the organisation.

The review may include asking the investigator to revisit aspects of the investigation if the reviewing senior officer or committee believes the investigation was lacking in some aspect.

Legal advice may be sought as part of the decision-making process, if required.

Inform the parties

Once the investigation is completed, the person who reported the matter and the person(s) who was the subject of the allegations should be informed of the outcome. 

This should be done according to the organisation’s relevant internal rules, policies and processes, bearing in mind other considerations such as ensuring they are aware that reprisal action against a discloser is prohibited.

Confidentiality

The investigator should maintain the confidentiality of the individuals involved. 

Be wary of giving any guarantees of absolute confidentiality. This is because sometimes names or identifying details need to be disclosed to people assisting with the investigation. Disclosers should be informed when it appears necessary to name them and that even when they are not named it is possible that their identity could be guessed.

Breaches of confidentiality are one of the key causes of reprisals against whistleblowers in investigations. Remind relevant people that confidentiality is important. Disciplinary action may be taken against those who breach it.

Anonymity

The investigator may receive anonymous reports of wrongdoing. 

It can be difficult to do a complete inquiry or investigation without being able to talk to the whistleblower. 

However, you should still attempt to take all appropriate steps including, where warranted, an investigation.

Encouraging people within organisations to speak up about their concerns is important. It's part of ensuring that organisations and branches are run according to their rules and policies.

Having a whistleblower policy, which outlines the processes and protections in place when concerns are raised, will increase the likelihood that members and others will raise matters early. This will help organisations take appropriate action.

When considering a whistleblower policy, you should think about:

• whether you'll be able to follow it effectively
• how you will implement the policy
• how officers, employees and members will be educated about it.

We have created a template to assist you to develop an internal whistleblower policy. You can amend the template as required to fit with your resources and structure.

When disclosable conduct is reported in your organisation, it helps having clear roles and responsibilities to handle the matter.

• Investigation checklist
• What are the protections for whistleblowers
   

Call us on 1300 341 665, or email us at regorgs@fwc.gov.au.