Unprecedented scrutiny of corporate conduct in the private sector has recently resulted in the introduction of new obligations with respect to whistleblowing. The Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (Whistleblower Protections Act) expands the provisions of the Corporations Act 2001, increasing legal rights and protections for whistleblowers who raise concerns and report potential misconduct or breaches of law that may cause harm to consumers and the community. The legislation also requires large proprietary companies, listed public companies and corporate trustees of registrable superannuation entities to have a whistleblower policy in place that includes company-specific details on how the organisation will:
Manage and investigate disclosures made by whistleblowers,
Maintain confidentiality and safeguard the privacy of a whistleblower during and after an investigation, and
Protect whistleblowers from detriment and threats or acts of harm.
Edge Investigations offers a full suite of investigative services, including:
Advisory services – provision of practical and strategic advice to organisations wishing to conduct internal investigations.
Supported Internal Investigation services – provision of advice and assistance to organisations who require additional support to conduct internal investigations that meet legal, regulatory and employer obligations.
Full Whistleblower Investigation services – provision of an experienced external investigator to conduct an impartial investigation that meets legal requirements and assist organisations to balance employer and regulatory obligations.
Every investigation undertaken by Edge Investigations’ team of professional, experienced and highly trained investigators is conducted to the highest standards, in full compliance with all applicable internal policies and legal and regulatory requirements.
WHEN MIGHT YOUR ORGANISATION REQUIRE A WHISTLEBLOWER INVESTIGATION?
Internal whistleblower investigations are required when individuals who meet the definition of ‘whistleblower’, as outlined in the Corporations Act, come forward to disclose any act or omission that they have reasonable grounds to suspect constitutes Reportable Conduct.
Reportable Conduct may be defined as:
misconduct, or an improper state of affairs or circumstances,
conduct that constitutes a contravention of applicable laws,
conduct that represents a danger to the public or the financial system.
Examples include, but are not limited to:
illegal conduct, such as violence or threatened violence, criminal damage against property, or theft,
financial irregularities, misappropriation of funds, fraud or money laundering,
offering or accepting a bribe,
breaches of, or failure to comply with, legal or regulatory requirements, and
threats or acts of Detrimental Conduct against an individual who has, or is believed or suspected to have, made a disclosure or is planning to make a disclosure of Reportable Conduct.
WHAT IS THE GOAL OF A WHISTLEBLOWER INVESTIGATION?
The goal of a Whistleblower Investigation is to determine the facts of the matter, collect and evaluate the evidence at hand, and resolve the issue in an efficient manner that adheres to the relevant legal requirements. The aim is to undertake a robust investigative process that is objective, transparent, legally defensible and able to withstand the scrutiny of investigations conducted by external agencies and regulatory bodies.
Careful management of the investigative process is required to ensure the integrity of the investigation, its findings and any actions taken by the organisation on the basis of those findings.
Edge Investigations uses rigorous, specialised investigative processes and practices to conduct independent, unbiased investigations that assist organisations to mitigate the risks posed to their reputation by allegations of corporate misconduct and white-collar prosecutions.
PROCEDURAL FAIRNESS IN WORKPLACE INVESTIGATIONS
There are a number of fundamental legal principles that must be adhered to when undertaking a Whistleblower Investigation. An independent investigator acting on behalf of the organisation must operate within the principles of procedural fairness whilst also taking into consideration the employer’s legal obligations and the legal rights of individuals involved or named in the matter, giving particular regard to all relevant internal policies, applicable legislation, regulations and guidelines, and requirements of governing bodies such as ASIC.
Any conduct that may be seen as a breach of an employer’s duty of care when conducting a Whistleblower Investigation may constitute a failure on the part of the employer to afford their employee/s the protection and support they are entitled to under the law. Furthermore, where procedural fairness is neglected in the conduct of a Workplace Investigation, any findings of the investigation may be called into question and decisions made by the employer on the basis of those findings could invite criticism of the organisation and expose the employer to legal liability.
WHY DO WORKPLACE INVESTIGATIONS REQUIRE SPECIALISED PROCESSES AND PROCEDURES?
It is imperative that every aspect of a Workplace Investigation be conducted with total transparency, in accordance with proper legal principles and competent, specialised investigative procedures, to ensure that findings of the investigation and decisions made on its basis are fair, unbiased and able to withstand intense scrutiny.
Any error, omission or deviation from legal and/or procedural requirements may invalidate the investigation, jeopardise any potential civil or criminal case that may exist and give an employee cause to take legal action against the employer, even if an allegation is well-founded or an employee’s actions are illegal or constitute Reportable Conduct.
REQUIREMENTS FOR CONDUCTING EFFECTIVE WHISTLEBLOWER INVESTIGATIONS
Successful Whistleblower Investigations ultimately rely on the investigator’s ability to conduct a rigorous, completely unbiased, transparent and confidential investigation in accordance with proper and lawful investigative principles, practices and processes. To that end, the investigator must:
Carefully plan the investigation, giving due consideration to confidentiality, applicable whistleblower protections, possible conflicts of interest and potential consequences,
Provide adequate information to all parties regarding the process of the Whistleblower Investigation and the rights, responsibilities and obligations of all involved and named individuals,
Ensure all pertinent information is collected and considered – including conducting confidential interviews; producing accurate interview transcripts; collecting and collating witness reports and documentary evidence; applying relevant policies and procedures; and collecting and considering other relevant information.
Maintain respectful and confidential contact with all parties at all times, giving due consideration to the nature of the alleged Reportable Conduct; the circumstances of the alleged or confirmed actions of all involved or named individuals; and communicating with professionalism and sensitivity with all parties at all times.
Ensure that channels of communication between the complainant, stakeholders and named individual/s are kept open throughout the Whistleblower Investigation process.
Clearly demonstrate their objectivity and ability to act without bias throughout the Whistleblower Investigation process, particularly when conducting interviews, assessing the validity of evidence, coming to a conclusion and making a finding, and preparing a formal investigation report.
Edge Investigations’ substantial experience in conducting specialised investigations, coupled with our proven-effective frameworks for investigative process and policy development, allows us to provide our clients with exemplary investigative services that are efficient and timely. Our ability to carry out expert gap analysis on currently policies and undertake adroit risk assessments enables us to help our client develop customised management solutions that reflect their organisation’s individual risk profile, thereby assisting them to cultivate a robust compliance culture that serves to protect their reputation and mitigate the risks posed by professional misconduct.
HOW CAN EDGE INVESTIGATIONS ASSIST YOUR ORGANISATION TO CONDUCT EFFECTIVE WHISTLEBLOWER INVESTIGATIONS?
While some organisations have a comprehensive Whistleblower Management Plan that supports their Whistleblower Policy, or a Whistleblower Committee with designated roles to manage Whistleblower Reports, many don’t. For those organisations that don’t, the process of undertaking a comprehensive Whistleblower Investigation that complies with all legal and regulatory requirements can be a seemingly daunting, nigh-impossible task. Furthermore, depending on the nature of the situation, alleged Reportable Conduct, or the positions or identities of the involved or named individuals, it may be inappropriate for a Whistleblower Investigation to be conducted internally.
It is important that the selected investigator is an experienced, knowledgeable professional who is conversant in the potentially complex legal and procedural requirements for conducting specialised investigations into Whistleblower allegations. Botched or inherently flawed investigations can be extremely damaging to all parties involved, so it is crucial to have a proficient, unbiased, external investigator at the helm of a Whistleblower Investigation.
Edge Investigations’ specialised investigative procedures are based on fundamental legal principles and formalized and accepted practices and processes for the conduct of Whistleblower Investigations. These procedures and practices enable our team of knowledgeable, professional investigators to conduct sensitive, confidential and transparent investigations; make fair, unbiased and legally-defensible determinations; and deliver robust and reliable investigation reports that meet employers’ legal obligations and are able to withstand legal scrutiny or challenge.
If you are seeking help or guidance to develop a bespoke Whistleblower Policy or Whistleblower Management Plan, or require assistance to investigate whistleblower allegations, contact the team at Edge Investigations today.