Workplace Investigator Licence

Workplace Investigator Licence

Workplace Investigator Licence – I was recently asked “As an external HR consultant I have been asked to do a workplace investigation into a bullying complaint, do I need to have a licence to conduct workplace investigations?”

The answer to this is a most definite YES, A Workplace Investigator Licence must be held to engage in the investigation of persons

You do not require a licence if you are a HR professional conducting an internal investigation for your employer but any external person conducting an investigation into the business or personal activity of a person you MUST hold a Commercial and Private Inquiry Agents (CAPI) Licence for the authorised activity – investigation of persons.

The licencing of private investigators/workplace investigators in relation to the investigation of persons is governed in NSW by the Commercial Agents and Private Inquiry Agents Act (Link to Act) other states have similar Acts/regulations.  The licencing of workplace investigators in NSW is the responsibility of the Security Licencing & Enforcement Directorate (SLED) a division of the NSW Police.  In most states the licencing of workplace investigators is controlled by the state police.

The investigation of persons is considered for the purpose of the Act and licencing to be a ‘private inquiry agent activity’

If you run a business that employs consultants you must hold a Master Licence and if you are the person conducting the investigation you must be employed by a Master Licence holder and also hold an Operator Licence. If you are self employed you are required to hold a Master and Operator Licence. For full details click here

I am aware that a large number of HR Consultants, IR Consultants, mediators and other assorted consultants conduct workplace investigations without being licenced.

Problems for the unlicensed investigators

The CAPI Act states in section 5 states that it is an Offence to carry on business without master licence

(1)  A person must not carry on business in relation to any commercial agent activity or private inquiry agent activity unless he or she does so in accordance with a master licence for that activity.

Maximum penalty: 1,000 penalty units (in the case of a corporation) or 500 penalty units or imprisonment for 12 months, or both (in the case of an individual). 1 penalty unit = $110.00

Section 11 states that it is an Offence to carry on activities without operator licence

(1)  An individual must not carry out any commercial agent activity or private inquiry agent activity unless he or she does so:

(a)  in accordance with an operator licence for that activity, and

(b)  in the course of his or her employment with the holder of a master licence for that activity.

Maximum penalty: 500 penalty units or imprisonment for 12 months, or both.

There are exceptions detailed in schedule 1, however external consultants unless legal practitioners are not exempt.

Problems for employers and organisations engaging unlicensed investigators

If a dismissal or litigation result from an employer relying on the findings and/or recommendations made by an unlicensed investigator the entire investigation may be called into question.  The argument could be made that the investigator was not authorised or licenced to conduct the investigation therefore the report, findings and recommendations should not be considered to be valid and should not be accepted by the court or tribunal.

The employee could bring a claim against the employer for not providing procedural fairness.  For example, an employee may argue that their dismissal was unfair because the employer should not have relied on the findings and report of an unlicensed investigator to effect dismissal.

Duty of Care issues may also arise where perhaps an unlicensed investigator has found found that a sexual harassment complaint is not substantiated and the complainant then sues the organisation in relation to the initial incident and the subsequent flawed investigation.

It is very common for mediators, HR consultants and other consultants to advertise workplace investigation services and they may do a good however,  unless they are licenced the investigation can be called into questions especially if the opposing lawyer has a weak case and attacking the investigation is a means to strengthen their position.

The result could be a loss in the court or the cost associated with a second investigation.

Advice for employers

There are many reasons to engage an external workplace investigator including;

  • When the allegations are serious (eg employee misconduct such as alleged discrimination, sexual harassment, bullying, inappropriate use of the internet or social media, theft of company property, fraud and policy breaches);
  • When the stakes are high (when allegations are made against an employee, the employer’s business and reputation may be on the line);
  • The need for impartiality (the parties must feel that they have been treated fairly throughout the process);
  • The need for a high level of expertise and experience (cases can be complex, and the investigator must be adequately trained in interviewing witnesses, gathering relevant documents, and experienced to evaluate the evidence, assess credibility of witnesses, weigh corroborative, circumstantial and similar fact evidence, and reach a conclusion);
  • Timeliness (eg lack of internal resources);
  • Dealing with the media (eg allegations involving discrimination or harassment may attract unwanted media attention, and investigators must ensure that information regarding the investigation is not prematurely disclosed to the public);
  • Maintaining privilege (eg hiring a lawyer as an investigator can help to protect legal professional privilege);
  • Simplifying litigation (eg a comprehensive investigation report, if favourable to an employer, can shut down legal disputes at an early stage, as adjudicators may wish to rely upon the findings of a sound investigation report to determine issues of employer liability);
  • Rebuilding trust and morale (eg complaints of wrongdoing by employees can harm workplace morale and an employer who fails to conduct a fair and thorough workplace investigation into allegations risks creating more toxicity in the workplace.
  • My advice, get it right the first time every time.

1. Always ensure that the investigator you engage is qualified and licenced, we are all issued with a driver’s licence size photo ID licence.
2. Ask for the investigator’s licence number, most of us place it somewhere on our web sites, in my case my Master Licence is 411939151 and located here
3. You can check to verity the licence here

AWPTI is fully licenced and insured to conduct thorough workplace investigations, contact us us should you need assistance.

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

www.awpti.com.au
http://awpti.com.au/investigations/
http://awpti.com.au/training/