A properly investigated report is the only sound basis for taking institutional action with regard to an individual found to be responsible for wrongdoing or for effecting organisational change where systems, governance and processes are found to be at fault. The manner in which employee disclosures about wrongdoing are investigated will, from the outset, have an impact on whether there is a satisfactory result. Poor investigations can lead to protracted and expensive cases, give cause for further complaint and conflict, contribute to the many stresses on individuals and the organisation and bring about a loss of public confidence in the agency’s ability to ‘investigate its own’. Debate often arises about whether investigations of misconduct or wrongdoing can be conducted appropriately by individuals or units within the agency that is the subject of the complaint.
Notwithstanding this debate, by far the majority of investigations into reports are conducted internally—and often with success. The aim of this chapter has been to explore in greater detail whether there is scope for investigative practice to be improved, so as to help build more robust, well-recognised systems for dealing more effectively with whistleblowing reports in a higher number of cases.
The chapter has examined who conducts investigations of reports of wrongdoing and what training they have, across a wide pool of public agencies. It has also compared their level of training with other measures such as internal witnesses’ satisfaction with the progress and outcome of the investigation of their report. A notable result was the inconsistency in the level and type of training of investigators, with very low levels of training in circumstances in which a much higher level should reasonably be expected, and an awareness of these inadequacies on the part of many of the staff involved.
It is possible that these results can be explained partially by the wide variation in roles and responsibilities included under the broad grouping of ‘case-handlers and managers’ and others who conduct investigations. It is also clear that decisions about who should conduct an investigation, and how, are grounded in a range of agency-specific issues, including the size of the agency and the number and nature of reports it deals with. The current state of affairs, however, could also be explained by the fact that development of practice and procedure in administrative investigations is still in relative infancy. The recognition of the need for coherent, comprehensive and professional investigation approaches has, until relatively recently, been limited to a range of specific, segmented fields. Reliance on former police as criminal investigators might not necessarily translate into quality investigations of non-criminal issues. Human resource officers familiar with investigations of personnel and workplace grievances, equal opportunity, bullying or harassment might not recognise the public interest components of disclosures about defective administration or professional negligence. Specialist accounting and auditing consultants might have expertise in cases of fraud or breach of security, but be ill equipped to identify, substantiate or suggest answers to internal policy breakdowns. Generalist managers tasked with guiding the organisational response might have any of these areas of expertise, or none of them.
For these reasons, a new model of investigation is emerging distinct from criminal investigations. Manuals are being developed—for example, by the NSW Ombudsman (2004b)—that provide guidance for how administrative investigations should be conducted. The results presented in this chapter contribute substantially to the developing literature on these types of investigations. As suggested in the body of the chapter, there is a need for a thorough audit of investigatory expertise, training and experience to complement this information about the investigation of whistleblower reports. Irrespective of the fact that this is a developing field, however, it is clear that to improve practice, attaining certain levels of training is essential—particularly given the evidence that the significance of professional training lies not only in technical skills but in improved understanding of whistleblowing as a total process.
In considering the scope for the improvement of investigatory expertise, it should be recognised that many public sector organisations require this sort of capacity for reasons other than for investigations arising from a whistleblowing incident. Indeed, they could already possess it. For example, most large public sector agencies regularly investigate breaches of codes of conduct and other workplace matters, while any agencies whose functions include licensing need to investigate breaches as a part of their statutory function. Organisations that have other areas of investigatory capacity should be able to swing that capacity across to the effective investigation of whistleblower reports.
While this chapter’s finding about low levels of investigatory expertise, training and experience have wider ramifications than just whistleblowing, the need to deal well with employee disclosures can, and should, nevertheless provide a catalyst for the development of more expertise. Internal reporting of wrongdoing occurs in a more fraught social context than many other subjects of criminal and administrative investigation, such as non-compliance. Investigation skills must be addressed to the permeability of the boundaries between personal grievances and matters of broader organisational or public integrity. Distinguishing between the elements of disclosures that raise public interest elements and those that spring from an unhappy workplace, and ensuring all are dealt with appropriately, is a challenge for any agency. These challenges must be met head on, recognising that in many whistleblowing situations, the workplace has become a contested space in which there are differences of opinion, work standards, power relationships, professional judgment and ethical standards. Whistleblowing also imposes obligations on agencies to conduct and manage investigations in ways that recognise their special duty of care towards their informants and witnesses, being also their own employees—as will be discussed further in the next chapter.
Finally, the chapter showed a number of relationships between the existing ‘investigatory capacity’ of agencies and other outcomes, including general attitudes of managers and case-handlers to whistleblowing, confidence in the ability to prevent or contain management mistreatment of whistleblowers and the willingness of employees to report. While more study is needed into the role of investigatory capacity in encouraging employees to feel more comfortable about reporting, these results confirm that addressing weaknesses in capacity is a fundamental element of ensuring that staff members speak up about their concerns.
As discussed in Chapters 1 and 2, and again in the previous chapter, an overall conclusion from this research is the finding of a high level of staff and management commitment to professional management of whistleblowing reports. The question remains how this commitment can be more routinely translated into practice. There is a clear need to close the gaps between broad principles and practical realities.
The results from this chapter reinforce the pivotal importance of approaches taken by public sector managers to prevent and remedy problems on the ground. The need for better systems and procedures begins with efforts to ensure any investigation can be carried out competently by the organisation or passed appropriately outside the organisation for investigation. There is special need for effective resources to be devoted to investigation by the organisations involved. Areas shown as requiring more attention include the training of investigators, the professionalisation of investigation practices, clearer differentiation between investigation roles and other institutional roles and mechanisms for ensuring that complainants are dealt with sensitively and kept informed of the progress and outcome of the investigation. The data also indicate a need for a better relationship between frontline managers and specialist units in the way reports of wrongdoing are notified and referred; and a better relationship between agencies and integrity agencies to overcome the problems of distance and time that, on this evidence, can hamper the usefulness of the latter. These reforms will provide the foundation for developing excellent practice in the investigation of employee reports and a basis for reflection on the developing practice of internal investigations more generally.