Investigations
Introduction
The Ombudsman may refer a protected disclosure or a public interest disclosure (whether received originally by the MFB, by the Ombudsman or by another public body) to the MFB for investigation. Where the Ombudsman refers a disclosure to MFB for investigation, the Protected Disclosure Co-ordinator will establish an investigation into the disclosure in compliance with the Act and these Procedures.
The objectives of an investigation by the MFB will be:
- To collate information relating to the allegation as quickly as possible. This may involve taking steps to protect or preserve documents, materials and equipment;
- To consider the information collected and to draw conclusions objectively and impartially;
- To maintain procedural fairness in the treatment of witnesses and the person who is the subject of the disclosure; and
- To make recommendations arising from the conclusions drawn concerning remedial or other appropriate action.
Terms of reference
Before commencing an investigation, the Protected Disclosure Coordinator will draw up terms of reference and obtain authorisation for them from the Chief Executive Officer.
The terms of reference will set a date by which the investigation report is to be concluded, and will describe the resources available to the investigator to complete the investigation within the time set. The Protected Disclosure Coordinator may approve, if reasonable, an extension of time requested by the investigator.
The terms of reference will require the investigator to make regular reports to the Protected Disclosure Coordinator who, in turn, is to keep the Ombudsman informed of general progress.
Investigation plan
The investigator will prepare an investigation plan for approval by the Protected Disclosure Coordinator. The plan will list the issues to be substantiated and describe the avenue of inquiry.
It will address the following issues:
- What is being alleged?
- What are the possible findings or offences?
- What are the facts in issue?
- How is the inquiry to be conducted?
- What resources are required?
- Unless the disclosure has been made anonymously, at the commencement of the investigation, the investigator will notify the whistleblower that he or she has been appointed to conduct the investigation and the whistleblower will be asked to clarify any matters and provide any additional material he or she might have.
The investigator will be sensitive to the whistleblower’s possible fear of reprisals and will be aware of the statutory protections provided to the whistleblower.
Natural justice
- The person who is subject of the disclosure is entitled to know the allegations made against him or her and must be given the right to comment on those allegations prior to a final determination being made;
The principles of natural justice will be followed in any investigation of a public interest disclosure. The principles of natural justice ensure procedural fairness and that a fair decision is reached by an objective decision maker. Maintaining procedural fairness protects the rights of individuals and enhances public confidence in the process.
MFB will have regard to the following issues in ensuring procedural fairness:
- If the investigator is contemplating making a report that is or is likely to be adverse to the interests of any person, that person should be given the opportunity to make any further comment or to put forward further material which will be considered by the investigator prior to making the report. The investigator must give all persons likely to be adversely affected by a report an opportunity to comment on a draft of the report and their comments should be taken into account. The report must set out or accurately summarise the views of the person;
- All relevant parties to a matter should be heard and all submissions should be considered;
- A decision must not be made until all reasonable inquiries have been made;
- The investigator or any decision maker must not have a personal or direct interest in the matter being investigated;
- All proceedings must be carried out fairly and without actual or apparent bias; and
- The investigator must be impartial in assessing the credibility of the whistleblower(s) and any witnesses. Where appropriate, conclusions as to credibility should be included in the investigation report.
Conduct of the investigation
MFB will ensure that a person conducting an investigation is aware of the provisions of the Act, including the criminal penalties applying for breaches of the Act.
The investigator will make contemporaneous notes of all discussions and phone calls, and all interviews with witnesses will be taped. All information gathered in an investigation will be stored securely. Interviews will be conducted in private and the investigator will take all reasonable steps to protect the identity of the whistleblower.
Where disclosure of the identity of the whistleblower cannot be avoided, due to the nature of the allegations, the investigator will warn the whistleblower and his or her welfare manager of this probability.
The MFB must refer an investigation to the Ombudsman if it considers that its own investigation is being obstructed.
- The investigation is being obstructed by, for example, the non-cooperation of key witnesses; or
- The investigation has revealed conduct that may constitute a criminal offence.
In addition, the whistleblower may request the Ombudsman to investigate the disclosed matter if:
- the MFB fails to investigate the matter;
- the whistleblower is dissatisfied with the manner in which the MFB is investigating the matter;
- the whistleblower is dissatisfied with the steps taken by the MFB after the investigation; or
- the MFB fails to take the actions set out in section 11 of these procedures.
It is in the discretion of the investigator to allow any witness to have legal or other representation or support during an interview. If a witness has a special need for legal representation or support, permission should be granted.
Referral of an investigation to the Ombudsman
The Protected Disclosure Coordinator will consider any advice of the investigator and make a decision regarding the referral of an investigation to the Ombudsman where the investigator believes that:
- The investigation is being obstructed by, for example, the non-cooperation of key witnesses; or
- The investigation has revealed conduct that may constitute a criminal offence.
In addition, the whistleblower may request the Ombudsman to investigate the disclosed matter if:
- the MFB fails to investigate the matter;
- the whistleblower is dissatisfied with the manner in which the MFB is investigating the matter;
- the whistleblower is dissatisfied with the steps taken by the MFB after the investigation; or
- the MFB fails to take the actions set out in section 11 of these procedures
Reporting requirements
The Protected Disclosure Coordinator will ensure the whistleblower is kept regularly informed concerning the handling of a protected disclosure and an investigation except if to do so would endanger the safety of any person or prejudice the conduct of the investigation.
The Protected Disclosure Coordinator will report to the Ombudsman about the progress of an investigation.
Where the Ombudsman or the whistleblower requests information about the progress of an investigation, that information will be provided within 28 days of the date of the request.