The ball-tampering saga that besieged the Australian cricket team provides important lessons, not only for those wearing the ‘baggy green’, but also employers carrying out employee misconduct investigations.
Many of us were surprised when Cricket Australia informed the public its investigation findings would be determined within 2 days. The speed with which the investigation was finalised led many to question whether the investigation was as thorough as it should have been. When debate arose about the severity of the penalties, these questions were all the more relevant. Could Cricket Australia be satisfied that it had uncovered all necessary evidence, including any mitigating circumstances, before it reached its conclusions?
The investigation itself was carried out by Cricket Australia’s Senior Legal Counsel and Head of Integrity. Would it have been preferable for the investigation to have been commissioned by Cricket Australia’s lawyers, potentially attracting legal professional privilege over any investigation report? Could reputational damage and future liability be minimised if the investigation report was protected by privilege?
Then we have the issue of Cameron Bancroft’s story apparently changing throughout the investigation. While it is not entirely clear what he told the Cricket Australia investigation, he did initially reveal to the media that the object he used was ‘yellow tape’. Not until later in the week was it revealed that the object was in fact sand paper. In some circumstances, dishonesty during an investigation could be grounds for dismissal because of the deterioration in trust and confidence between an employer and employee.
Finally, there was mixed public opinion when it was revealed the players may seek to challenge the penalties handed to them. Some said the players should, as the sanctions are too harsh. Others said it would make matters worse, and so shouldn’t. The players have now all elected not to challenge the sanctions, but employees are entitled to, and do regularly, challenge disciplinary sanctions and this can be done in many ways, either by initiating court proceedings, raising grievances or seeking an internal review.
Have you seen these issues reveal themselves in misconduct investigations you have been involved in? Are there any other lessons employers can learn from the ball-tampering saga?