KEY TAKEAWAYS:
The fundamentals of an effective workplace investigation are the same for sports clubs, associations and representative bodies as they are for any employer. This nine-point plan reviews investigation fundamentals through a sporting lens:
- clear protocols – the investigation and disciplinary process should be independent of each other, undertaken by different roles within a sporting organisation
- confidentiality – the privacy of all participants involved in a sports investigation should be upheld, as far as possible
- trauma-informed practices – investigations should be planned and conducted according to trauma-informed principles and practices to minimise potential harm and to help elicit the most reliable evidence
- impartiality – investigators should have no conflicts of interest and maintain an open mind from the start to the finish of the investigation
- robust evidence gathering – evidence should be obtained from a variety of sources such as CCTV footage, employee timesheets, emails and team chats, while adhering to privacy laws and organisational policies
- awareness of power dynamics – be aware of power dynamics that could be at play in a sporting organisation which may influence a participant’s involvement in an investigation
- fairness – investigators must be fair to all participants, including providing the respondent with reasonable notice of the allegations, allowing them to respond and considering their response in the investigation findings
- planning – investigators need to consider sporting competitions or other training commitments that could impact the availability of participants which could slow the progress of the investigation
- reputation management – where possible, communicate with key stakeholders (while maintaining the privacy of participants), including the media, to foster transparency and accountability and uphold the organisation’s reputation.
In any organisation, upholding integrity and addressing misconduct requires a good understanding of best practice, procedurally fair workplace investigations. This article explores nine key components of an effective workplace investigation within the unique context of sporting organisations such as community-based clubs and representative associations.
1. Clear protocols
It’s important that sporting organisations understand when the requirement to investigate a complaint falls to them or is captured under the National Integrity Framework. This distinction was explored in our second article. If the responsibility to investigate falls to the sporting body, best practice is to follow established protocols and processes and maintain separation between the investigator and the decision maker. This may necessitate the appointment of an external investigator.
- The case manager/ instructor: This person instructs the investigator about the complaint and may also liaise with internal stakeholders/ participants in the process. This may be a member of the board, member of senior management or another appropriate member of the organisation.
- The investigator: The investigator is appointed to be an independent fact finder to investigate the allegations and reach findings ‘on the balance of probabilities’. This phrase means that the investigator must be satisfied that the alleged conduct more likely than not occurred. This person should have a working knowledge of a fair and impartial investigation process.
- The decision maker: The decision maker is appointed to make a decision about any action that may follow from an investigation. To the extent possible, this role should be separate from the investigator (and, ideally, not involved in the investigation process) to ensure the impartiality of the investigator. However, this may not be possible in all organisations, particularly a community-run sporting organisation. If these roles cannot be separated, it is important to ensure that the investigation process is treated separately to any disciplinary process (in which, for example, disciplinary action may be taken against an individual because of the investigation findings).
Ensuring each party understands their role in the process will help to foster consistency and transparency throughout the investigation process and confidence in the integrity of the outcomes.
2. Confidentiality
Safeguarding the confidentiality and privacy of all parties involved is paramount in any investigation process. Ensure all participants are given appropriate directions to keep the matter confidential and the investigator should do their best not to disclose the names of any participants in the process to the greatest extent possible. Sometimes due to the nature of the allegations, providing participants with certain details of an incident will mean that it is apparent who raised or is named in a complaint, however an investigator should try to avoid directly disclosing this information where possible.
3. Trauma-informed practices
It is possible a complainant or participant in the investigation process may have been through a traumatic experience. It is therefore helpful for the investigator to understand and apply trauma-informed principles to minimise any further harm to a person during the investigation and to help get the most reliable evidence.
Basic principles of a trauma-informed approach include ensuring the interview is conducted in a safe environment. For example, meeting in a private space, encouraging the use of a support person throughout the investigation process and building rapport with the individual.
Using open-ended questions and displaying empathy also helps to create a safe and supportive environment for interviewees. Providing appropriate support and accommodations to participants prioritises their wellbeing throughout the investigation process. We explore trauma-informed interviewing techniques in greater detail in this article.
4. Impartiality
One of the cornerstones of a procedurally fair investigation is impartiality. Assign investigators who are free from conflicts of interest and known bias to ensure objectivity. This may not always be straightforward in a sporting organisation with limited dedicated human resources or legal employees, however there are a few ways in which sporting organisations can establish impartiality in investigation processes.
- Proactively address conflicts of interest: Identifying and mitigating conflicts of interest is crucial to prevent potential biases among investigators. A conflict of interest may arise when the investigator has a close personal connection with a complainant or respondent. Where a conflict arises, it is prudent to appoint another investigator from the organisation or engage an external investigator if no one else is suitably experienced to conduct the investigation.
- Rotate investigators: To the extent possible, use a number of investigators for different cases to mitigate the risk of undue influence from any internal relationships.
- Don’t make premature judgements: In the investigation process, it is important for an investigator to keep an open mind about the findings until all the evidence has been collated. This will generally preclude an investigator providing stakeholders with mid-investigation ‘updates’ about where the investigation ‘might be headed’, as an impartial investigator will not pre-judge outcomes.
5. Robust evidence gathering
Effective evidence gathering is essential for thorough and reliable investigation outcomes. Utilising a variety of methods enhances the accuracy and reliability of investigation outcomes. This may include speaking to witnesses and reviewing documentary evidence, for example, timesheets, badge entry times, CCTV, emails, Teams chats or other communication channels. Some of this information may be provided by witnesses or alternatively, the organisation may have the means to conduct this review through its internal technology systems. Be sure to understand what the organisation is legally permitted to review as part of the investigation, taking into account privacy laws and the organisation’s policies.
6. Awareness of power dynamics
Investigators should take into account complex power dynamics that exist in sporting organisations, particularly when investigating allegations involving high-profile individuals or influential stakeholders. Uphold principles of fairness and equity, ensuring that all parties are treated with respect and afforded due process. In assessing the credibility of witnesses, an investigator may take into account power dynamics that may influence an individual’s evidence. For example, someone may refuse to participate in an interview or minimise their evidence if they are concerned about victimisation. Explain to participants the legal and policy protections against victimisation and any confidentiality safeguards in the process.
7. Fairness
Another cornerstone of a procedurally fair investigation is ensuring that the respondent is given a fair hearing. This includes:
- providing reasonable notice of the allegations to the respondent
- allowing the respondent to respond to the allegations
- taking into consideration their response in reaching investigation findings.
There is no set rule about what is ‘reasonable notice’. Reasonableness is based on the seriousness and number of allegations, the respondent’s access to relevant information, and also any requests made by the respondent, to allow, for example, their support person to attend on a particular day or to allow sufficient time to gather relevant information to provide their response.
8. Planning
Effective planning will be crucial to minimise disruptions to sporting activities, while still achieving a prompt and fair resolution in an investigation. At the outset of an investigation it is helpful for the investigator or case manager to identify any competitions or other training commitments that could impact the progress of the investigation due to availability of participants. This will help the investigator is aware of key commitments for participants in the process and allow them to proactively manage timing challenges or expedite the process as needed.
9. Reputation management
Depending on the nature of the allegations and individuals involved, organisations should anticipate media scrutiny and public attention and take proactive steps to manage external perceptions and maintain public trust. In some cases, it may be appropriate or necessary to communicate with the media or other external stakeholders about the status of an ongoing investigation, while adhering to confidentiality requirements. While certain details should not be shared externally, reassuring stakeholders that an organisation is taking prompt action to investigate will usually help to foster transparency and accountability and uphold the reputation of the organisation.
Conclusion
More than ever, the integrity and credibility of Australian sports organisations can be influenced by their ability to conduct thorough and fair workplace investigations. By adhering to key principles of procedural fairness, organisations can ensure accountability throughout the investigation process. Defining clear roles, implementing confidentiality safeguards, ensuring impartiality and a fair hearing collectively contribute to the integrity and credibility of the investigation process.
Proactive communication with internal stakeholders, and where necessary and appropriate, the media, while upholding confidentiality requirements, is essential for managing external perceptions and upholding the reputation of the organisation.
Through these efforts, sporting organisations can foster a culture of trust, respect, and fairness, ensuring the continued success and integrity of Australian sport for the benefit of all stakeholders involved.
Article written by Sophie Croft.
This is the final article in a four-part series:
PART 1 | Out of bounds: Navigating integrity issues, misconduct investigations and cultural dynamics in sport
PART 2 | The game plan: Who is responsible for investigating a complaint?
PART 3 | Beyond the scoreboard: Considerations for sporting boards and committees
More information
Seasoned workplace investigators from Q Workplace Solutions – one of Australia’s largest independent specialist workplace investigations firms – will unpack how to conduct a procedurally fair and legally defensible workplace investigation at an upcoming in-person Q Workplace Training workshop, How to Conduct an Effective Workplace Investigation, in Sydney on 22 August.
Q Workplace Solutions’ legally trained expert investigators are trusted by public and private organisations, including ASX-listed companies and government departments, to:
- investigate complex and often highly sensitive allegations of employee wrongdoing to make legally defensible findings of fact
- conduct culture reviews of organisations, divisions or teams, and review workplace investigations and investigation processes
- support internal investigation teams through training, coaching and advisory.
