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Can former employees be compelled to participate in internal investigations?

By Kristin Ramsey24 Nov 2016

When investigating allegations of misconduct or other wrong doing, from time to time it is necessary to speak to people who are no longer employed by your organisation.

Often former employees are reluctant to participate in such investigations as a result of concerns over:

  • whether they may be personally implicated in some form of wrong doing as a result of the information they provide during the investigation;
  • the time and effort that may be involved, along with any costs they may incur; and/or
  • the impact of their participation on their relationship with the person being investigated, their own reputation or their  current employment.

This raises the question of whether you can compel a former employee to participate in a disciplinary or misconduct investigation...?

The short answer is that you generally can’t.

Absent some statutory or contractual power, in most cases you have no power to compel a former employee to participate in an internal disciplinary or misconduct investigation. Such a person has no obligation to assist in relation to your investigation or to provide information which may be helpful to resolving some of the issues arising from the investigation.

This can create serious difficulties for organisations when investigating complaints of harassment, bullying or other wrong doing, especially when the former employee is a key (and sometimes the only) witness in the matter.

So what, if anything, can you do to help convince a former employee to assist in an investigation?

The first step is to get an understanding of the person’s reasons for initially not wanting to participate. The second step is to see what you can do to address or alleviate that concern.

For example – if the employee is concerned about:

  • self incrimination - you could explain a little more about the purpose of the investigation and make it clear that you are not investigating their own conduct; where appropriate you could also reassure the person that no action will be taken against them even if it eventuates that they have personally have engaged in some form of wrongdoing;
  • the costs associated with their participation – you could offer to cover reasonable costs associated with time off work, travel, child care etc; or
  • the impact on their reputation or relationship with others – you could explain the steps that will be taken to ensure confidentiality and discuss whether or not the person’s identity as a witness will need to be revealed to the subject of the investigation.

The more information you can give a person about the purpose of the investigation and how their evidence might be able to assist the more likely they may be to agree to participate.

Ultimately the choice rests with the former employer however, and in some cases it might not be possible to convince them no matter how hard you try. In these situations you simply have to proceed with your investigation using the evidence you do have access to and make decisions based on that evidence.

In situations where a matter involves some form of external dispute resolution (eg a proceeding before a court or tribunal) it will usually be possible to compel former employees (and other relevant persons) to give evidence to assist in the resolution of the matter. This is typically done by issuing a subpoena or otherwise by a direct order from the relevant court or tribunal under their statutory powers.