Deferring to police
When Should a Matter be Handed to Police for Investigation?

Police involvement in a workplace incident is an unwelcome prospect for any organisation. It is often difficult for employers to know what matters should be reported to the police, at what stage of the process to contact the police, and how to proceed once the police are involved.

What matters should be reported to the police?

Some workplace incidents are so serious that they should always be reported to the police, for example the death of a worker or a critical injury. Other examples of matters which should be reported to police include:

  • Fighting/assault. 
  • A worker suspected of significant fraud or theft. 
  • Sexual assault. 
  • Threats to harm another person. 
  • Corruption. 
  • Activity that affects the safety of a child, for example abuse. 
When it comes to less serious matters, an employer may wish to report them, even if the police are unlikely to conduct an investigation.  For example, under the Fair Work Act, a small business employer can report an incident of two employees fighting, even if medical attention isn’t required. 

This is important, because such a report may help the employer meet the requirements of the Small Business Fair Dismissal Code, which can be used to defend a claim for unfair dismissal if the employment of either or both employees is terminated. An employer may also wish to report less serious incidents such as small thefts, for example, even if any police investigation is likely to be slow.

At what stage should police be contacted?

In the case of serious workplace incidents, such as a death or large-scale fraud, police should be notified immediately. In less serious cases, when to involve the police is not as clear cut. Suspected criminal activity often arises out of an allegation of serious and wilful misconduct, and usually an investigation will need to be conducted. The employee suspected of misconduct may need to be suspended even before the investigation has properly commenced. Time is of the essence and reporting a matter to the police may not necessarily be the most important thing. Whether an initial investigation should be deferred to the police is also a difficult decision, particularly if there is much confusion about how the incident occurred.

Why it is important to defer to police in serious cases
The general rule is that the more serious the offence, the more likely that the police or other authorities should be in charge of the investigation.  The reason is that any evidence should remain uncontaminated. For example, if the employer commences interviewing employees, views about the matter may be unwittingly passed on the interviewees. Any evidence that the interviewees subsequently provide to the police may be a reflection of those views, rather than an accurate account of what has happened. This compromises the police investigation, and may lower the chances of a conviction.
How to proceed once the police are involved
Problems can arise if the police investigation is too slow, or if the lines are blurred. For example, a person accused of physically assaulting a co-worker should not be allowed to continue working with that person pending the outcome of a police investigation. The parties should at the very least be separated from one another.
There may be circumstances in which a workplace investigation can be conducted while a police investigation is ongoing, especially in cases where employers have a need to deal swiftly with a situation, as in the example of allegations of assault. For this reason, the employer should stay in close contact with the police, and having assistance from experienced workplace investigators can be helpful in navigating the situation.
Making the decision to involve police
When deciding whether to defer an investigation to the police, consider that the more serious the allegation, the more likely that the police should be given the opportunity to initially investigate. If in doubt, it’s a good idea to report the matter to the police, and seek further guidance. An employer may need to suspend the employee on full pay pending the outcome of the police investigation, run a concurrent investigation, or be able to conduct their own investigation if the matter doesn’t warrant police involvement. Whichever path is appropriate, it is essential that employers deal with any incident as quickly and decisively as possible.
WISE Workplace provides training courses and masterclasses in investigations for HR practitioners, workplace investigators and managers.  Our courses are designed and taught by investigators specifically designed for those engaged in the investigation of workplace misconduct including bullying and harassment.  See below for upcoming course dates
(Articulates with Cert IV in Government Investigations)
Location: Canberra
Date: 20-22 May 2015
Location: Brisbane 
Date: 16-18 September 2015
Location: Adelaide
Date: 19-21 June
Location: Melbourne
Date: 5-7 August
Click here to find out more and book


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