When conducting a workplace investigation, do you record it, or not?
While there is a growing number of people who agree with the use of them, I don’t, and won’t.
I also don’t recommend that anyone else does either.
When I asked a “yay or nay” question on LinkedIn some months ago, giving my reasons for not using them, I got all sorts of comments.
This article is an expansion on my original reasons, and response to some of the comments that were made.
Contents
The LinkedIn Question
Normally, I would embed the LinkedIn update here, for you to read, though at the moment it seems that LinkedIn and WordPress aren’t talking to each other, so I can’t.
Therefore to read the update, you will need to follow this link.
Creates A Lazy Investigator
Most workplace investigation courses are a day or two at the most.
Then, once completed, the freshly trained investigator is likely to do maybe 3 or 4 investigations a year.
Combine these two, and I do believe that encouraging investigators to make an audio recording of the meetings can install and reinforce an attitude of laziness on the part of the investigator as they will always have the audio recording to fall back on should they miss something.
During a workplace investigation, the investigator needs to “be there”, and paying attention to what is said during the investigation meetings.
If the investigator has come to rely on the availability of a recording, for whatever reason, what happens if a recording isn’t able to be made?
Changes The “Vibe”
A majority of people behave differently when they know they are being recorded.
They tend to become more cautious and reserved with what they say and do.
In a workplace investigation meeting, this is likely to result in the person being more conscious of what they say, and possibly self-censoring their answers.
It can also cause the person being recorded to feel intimidated, and “under the spotlight”.
Which, in turn makes it harder for the investigator to build rapport with the person on the other side of the table.
Above Our Pay Grade
Creating an audio recording of a workplace investigation meeting turns it into something that is way above the “pay grade” of most, if not all workplace investigators.
Everything that happens on the recording of one of these meetings becomes legally admissible in court. Which means that the person being recorded should be afforded the opportunity to have legal representation present.
Yet, the Fair Work Act only allows a support person to be present in matters that relate to dismissal.
Other Considerations
Authenticity Of Recording
Without the use of dedicated and expensive master/clone digital recording equipment, how does the workplace investigator confirm the authenticity of the audio recording?
Using two digital recorders is unprofessional, and results in two different recordings. Which means that neither can be the master or clone.
There is also a question of what happens if one of the digital recorders fails.
Transcribing
If a digital recording is made, with the transcription being provided to the interviewee, what happens if they don’t accept the transcription of the recording?
What if the transcribers makes an error in the transcription?
How Long Will It Be Kept?
How long will the recording be kept by the investigator, and in what format?
Will it be only until the final report is delivered, then destroyed?
I am not sure how the courts would view a recording being disposed of that is part of a matter before them.
If it is then kept for “x” years, will it be on a secure external server, or locally on an external hard drive?
Legal Considerations
Depending on where you are, you may be able to openly record the discussion without the consent of the party being interviewed.
Though what if they refuse consent, and it is recorded anyway?
What happens if one of the people involved are calling in by phone or video hook up?
In all honesty, recording a workplace investigation meeting creates more of a head ache than it is worth, and we should be making things easier and simpler, rather than more complex.
Comments Received
In this section, I will respond to some of the comments that were left on the original LinkedIn post.
I Don’t Know What I’m Talking About
Hopefully, if you have read this far, I have been able to convince you that I actually do know what I am talking about.
What About ERISP?
ERISP is “Electronically Recorded Interview of a Suspected Person”.
I have not been able to find any reference to this in the civil jurisdiction, as opposed to the criminal jurisdiction where law enforcement would be the ones conducting the ERISP.
Therefore, I am confident enough to say that it doesn’t apply in a workplace investigation setting.
It is worth noting that before an ERISP is conducted, the police will usually give you a “caution”, and let you know what your rights are.
Again, the “caution” doesn’t apply in a workplace investigation setting, so ERISP shouldn’t be relied upon.
Organisation X Records Their Meetings
Sure the Fair Work Ombudsman, Australian Tax Office, etc record their interviews.
The difference is that they are doing so due to the suspicion of a contravention of legislation.
This is completely different to a breach of company policy.
Why Not Use Technology Available To Us?
I agree that we should use the technology that is available.
Though only if it is useful.
In this case, I do not believe that it is.
That being said, if we are to use the technology that is available to us, why don’t we use stenographers to transcribe the meetings?
What Will You Do?
While it is possible to say that the choice is yours whether you use an audio recorder when conducting a workplace investigation meeting, ultimately, it may not be.
What you do need to remember is that when conducting a workplace investigation, you only need to “find” that an allegation is substantiated or not substantiated on the balance of probabilities.
With this lower and easier to achieve standard, why succumb to bright shiny object syndrome and make things harder than they need to be?
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