Independence Isn’t Optional: When Investigators Follow the Employer’s Script

Independence in a factual investigation is not a slogan or a formality. It is a structural requirement. Without it, an investigation may appear orderly and compliant, while failing to do what it is meant to do.

A recurring issue we see in factual investigations is investigators allowing employers or claims managers to direct aspects of the investigative process. This can include directions about who should be interviewed, how interviews should be conducted, the order in which evidence should be gathered, or how allegations should be framed. Often, this direction is not malicious. It usually arises because expectations about the investigator’s role have not been clearly set at the outset.

In the absence of clear boundaries, employers and claims managers may step in to “help” shape the investigation, particularly where they are under pressure to manage timeframes, costs, or internal sensitivities. What begins as an attempt to streamline the process can quickly result in the investigator adopting someone else’s preferred approach rather than exercising independent judgment.

This is where problems arise.

In the context of statutory and common law claims in NSW and across Australia, independence means that the investigator controls the investigative process. While an employer or insurer may define the issue to be investigated and the outcome they are seeking to inform, the investigator must independently determine how the investigation is conducted. This includes deciding what evidence is required, who is interviewed, how allegations are put, and what follow-up enquiries are necessary in order to properly address the investigative task.

Guidance from bodies such as the Australian Human Rights Commission and the NSW Ombudsman consistently emphasises the importance of independence in the context of what is commonly referred to as procedural fairness. In simple terms, procedural fairness requires that an investigation be conducted in a way that is impartial, balanced, and fair to all parties, with each person given a reasonable opportunity to provide their account. In factual investigations, this requires the investigator to retain control over key investigative decisions.

Independence does not mean the investigator operates in isolation or without appropriate engagement with the employer or claims managers. Rather, it requires a clear understanding of where collaboration ends and independent investigative judgment begins. Importantly, this judgment relates to the investigative scope — that is, the lines of enquiry required to properly establish the facts — not the client’s mandate or the purpose for which the investigation has been commissioned. Decisions about investigative scope, method, and evidence collection must therefore be made by the investigator on the basis of relevance and fairness, not convenience or preference.

What happens when investigative independence is lost?

Even limited influence by one party over any aspect of an investigation can compromise the integrity of the process. Decisions about investigative scope, witnesses, or questioning shape the factual record, and where those decisions are influenced — even in part — relevant evidence can be missed, inconsistencies left untested, and the investigation’s ability to establish what occurred weakened.

The consequences are immediate and practical. Investigations that lack independence are less reliable as a basis for liability decisions, more vulnerable to challenge or review, and more likely to require further work. This drives cost and delay for employers and insurers, while undermining confidence in the process for workers and witnesses.

For investigators, this means being clear about your role from the outset and actively setting boundaries around the investigation. The functions of investigation, claims management, and workplace management must remain distinct. While collaboration and information-sharing are often necessary, decisions about investigative scope, evidence, and process must remain yours. Setting these expectations early helps keep investigations focused, fair, and defensible, and protects the integrity of both the process and the outcomes.