Choosing The Right Investigator: Why Expertise Matters More Than Title

In short

Choosing the right workplace investigator requires expertise, independence and clear roles. Effective investigations balance factual rigour, legal considerations and specialist knowledge to deliver credible findings that withstand scrutiny.

Recent media coverage and public debate have placed workplace investigations, and those who conduct them, under significant scrutiny. While much of the discussion has focused on particular cases and the professional background of investigators, the more useful question for organisations is often a simpler one: who is best placed to investigate the matter at hand?

The answer depends not only on the nature of the allegations, but also on the purpose of the engagement: An organisation should first determine whether it needs independent fact-finding, legal advice, strategic or operational advice, or a combination of those options. The investigation should be led by the person responsible for establishing the facts, with advisers and subject matter experts contributing within clearly defined roles. 

Match the investigator to the matter

Workplace investigations can involve issues ranging from bullying, harassment and other employee conduct concerns through to fraud, corruption, procurement irregularities and conflicts of interest. Each presents different risks, evidentiary challenges and stakeholder expectations. The investigator should have the skills and experience suited to the allegations and retain responsibility for the investigation plan, evidence gathering, interviews, analysis, and findings, while drawing on specialist expertise where required.

For matters involving complex financial transactions, procurement arrangements or suspected fraud, investigators with forensic accounting or investigative backgrounds may be best placed to trace transactions, analyse records and identify patterns that might otherwise be missed. Allegations involving employee conduct, workplace behaviour or interpersonal disputes may call for practitioners with significant workplace relations and interviewing experience, as well as an appreciation of the culture in which the investigation is undertaken.

Professional qualifications and job titles are relevant but should not determine the appointment by default. Independence, objectivity, investigative experience, and subject matter expertise are better indicators of whether an investigation will be thorough, proportionate, and capable of withstanding scrutiny. A multidisciplinary approach can strengthen the process, provided accountability remains clear.

Distinguish advice from investigation

Organisations should distinguish responsibility for establishing the facts from responsibility for advising on their legal consequences. Privilege will be important where litigation is underway or reasonably anticipated, regulatory exposure is significant or confidential legal advice is required. However, privilege should inform the engagement structure rather than automatically determine who conducts the factual inquiry.

The investigator’s role is to understand, assess and prioritise lines of investigation; gather and test evidence objectively; assess competing accounts; and establish the facts. Lawyers advise on legal obligations, procedural fairness, privilege, employment consequences, regulator engagement and litigation risk. Other specialists may contribute forensic accounting, digital forensics, data analytics, workplace relations, cultural, safety or technical expertise.

If the lawyer or law firm investigating the matter is the same lawyer or firm advising on the organisation’s response, their involvement in developing and testing the evidence may create an actual or perceived tension with the objectivity required of the fact-finder. Using an independent investigator and separate legal adviser can preserve the distinction between factual findings and advice on consequences and next steps. 

Separation may also preserve flexibility in later litigation. An investigating lawyer may have interviewed parties and witnesses, handled source material, made evidentiary decisions, or become a material witness about the process. This may affect whether the lawyer – and potentially their firm – can act as litigation counsel; and complicate disclosure, waiver, and the use of investigative material. It does not however, automatically make the evidence inadmissible.

Privilege is valuable, but it should support the investigation

Legal professional privilege is important, but its application and availability depends on the purpose, structure and circumstances of the engagement. It may extend to investigative work undertaken for the dominant purpose of obtaining legal advice or conducting anticipated litigation, and should be considered at the outset.

A practical model is for an independent investigator to lead the factual inquiry, supported by legal advisers and other experts. The investigator hears all relevant sides, controls the methodology, tests the evidence, integrates specialist analysis, and takes responsibility for the findings. Lawyers and technical experts contribute within their respective fields.

An appropriately experienced lawyer may still be appointed as investigator, including where the dominant purpose of the work is to enable legal advice or support anticipated litigation. In that case, the organisation should consider separate legal advice on the findings and further action, and assess whether the investigating lawyer’s involvement could affect later representation, disclosure, or the use of evidence. The structure should be a deliberate choice, not an assumption that privilege requires lawyers to lead every investigation.

Combine care with investigative rigour

Effective investigations also require sensitivity to how participants experience the process. Investigators should apply trauma-informed practices and consider psychological safety, support persons, cultural context, accessibility, interview format, and communication needs. These measures can reduce avoidable distress, support participation and assist the collection of reliable evidence, as well as support post investigation actions. They should inform practical decisions about interview arrangements, questioning, breaks and communication with participants.

Trauma-informed practice does not mean accepting every allegation, avoiding difficult questions, relaxing the applicable standard of proof or compromising procedural fairness. It means recognising how stress and trauma may affect participation, behaviour and recall, while maintaining neutrality and giving affected parties a fair opportunity to be heard. A process that is unnecessarily adversarial may cause harm and diminish cooperation, while one that doesn’t rigorously test the evidence may be unfair and unreliable.

Participant-centred measures should support, rather than displace, evidentiary rigour and procedural fairness. The specialist investigator must be capable of both care and challenge.

Make investigator selection a deliberate decision

Selecting an investigator without considering the engagement’s purpose, timing, leadership, and specialist requirements can result in delay, missed evidence, misplaced focus, or findings that do not withstand challenge. “Investigation by committee” can also blur accountability and produce inconsistent evidentiary decisions.

Appointing a capable lead investigator, matching expertise to the allegations and defining the role of legal and other specialists can improve efficiency, confidence in the findings, and fairness of the outcome.

The goal is not to appoint a particular profession by default, but to select the person best equipped to lead an objective factual inquiry. Where lawyers conduct the investigation, organisations should consider separate advice on the findings, next steps and implications for later litigation. Collaboration should strengthen the investigation without compromising objectivity, privilege, or accountability.

The quality and future utility of an investigation depend on clear leadership, an appropriate separation between fact-finding and advice, and effective use of legal and other specialist expertise.