Where do employer obligations end in a post-Swans scandal world?

In relation to a recent and ongoing investigation into alleged misconduct by AFL athletes, one expert details how employers can best and most appropriately balance police intervention with internal compliance.

Further to reports of an ongoing internal and external investigation relating to the conduct of several Sydney Swans players, HR Leader spoke to Sarah Wood, a workplace partner at Clyde & Co, to examine how employers must navigate police matters while keeping an organisation going.

According to Wood, employers that are struggling to conduct an internal investigation during an active police inquiry should make contact with law enforcement to ensure procedural fairness and avoid compromising proceedings.

“If workplace interviews are to be conducted, it may be important for participants to have the opportunity to obtain their own legal advice,” she said.

“Sometimes, a person facing workplace allegations may decide not to answer questions to preserve their rights at criminal law, but this may have implications for their job, resulting in suspension or termination of a contract or the employment.

“Before deciding to suspend or terminate, an employer will need to make sure any decision is defensible, and it would be wise to obtain legal advice at each decision-point because these matters can be especially fact-dependent.”

In this way, organisations also need to consider terms of employment contracts before decisions are made, as well as any unwritten or implied terms that govern the agreement.

Wood also noted that the standards of proof and legal tests are different to criminal standards of proof that will be considered by police or regulators.

She explained that, while evidence may meet the necessary civil standard for an employer to take action, the police must prove elements of an offence beyond any reasonable doubt, and this must be considered when judging organisational response.

Further, just as crucial for an employer navigating a potential criminal investigation is the consideration of organisation and workforce safety and protection.

“Any person conducting a business or undertaking must protect all of its people from psychosocial hazards,” Wood said.

“Investigations, both workplace and criminal, can be a traumatic experience for everyone involved, and the organisation needs to consider the mental health of all, including those accused of wrongdoing.”

In this way, employers are urged to conduct a risk assessment before committing to a major investigation or making a decision that could have multiple impacts or flow-on effects, and consider the implementation of any steps to mitigate or reduce potential harm.

Wood explained that employers are often guilty of moving too quickly.

When major incidents occur, such as that recently seen within the Sydney Swans AFL club, employers may feel the need to act quickly for the sake of the organisation’s reputation and internal pressures, as well as any potential threat to safety.

In this way, Wood acknowledged that “moving too quickly without sufficient evidence may lead to indefensible decisions, yet taking too long can prolong uncertainty with consequences for the mental health of people involved”.

However, as recently covered, when the response is too broad or mitigative, especially in high-profile cases, public opinion can do as much damage as any initial allegation.

While not every reaction can be mitigated, Wood reinforced the importance of a risk assessment to identify any involved with a potential decision or outcome.

It is in this way that “having a good diversity of advisors to talk through the pros and cons of decision making can also be valuable”.

More to come.

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