S03E140 Beyond the Incident, Deeper Workplace Investigations with Desai Link

What if your next investigation didn’t end at “who’s to blame,” but opened the door to safer work, stronger trust, and a healthier culture? We sit down with Desai Link, former lawyer, health and safety executive, and author of Beyond the Incident: Practical Tools, Legal Causation and Applied Workplace Investigation Practice, to rethink how leaders and lawyers approach evidence, accountability, and care when things go wrong.

Desai walks us through a striking case where a routine injury revealed a deeper recruitment failure, showing how courtroom-grade thinking, verifying claims, reading inconsistencies, and valuing oral evidence, can transform workplace investigations. We unpack why documents alone rarely tell the full story and how to conduct non-adversarial interviews that surface credible, testable narratives. From body language awareness to simple language choices, Desai shares practical steps that make people feel safe to speak while still meeting legal and operational standards.

We also dig into the human side of high-stakes cases like bullying and misconduct. Desai outlines a clear triage, people, property, notifications, to stabilize situations fast, protect dignity, and preserve evidence. You’ll learn how to reduce bias with assumption logs, clarify purpose and ethics before you begin, and apply legal causation to trace systemic factors rather than stop at individual error. Finally, we talk about power dynamics after the fact: how to control the narrative responsibly, indicate accountability without breaching confidentiality, and keep your team’s trust intact.

Reach Desai here:
Beyond the Incident: https://amzn.to/49O5bMt
https://dynamichse.co.nz
https://www.linkedin.com/in/desailink
https://www.circusofsafety.com
Ihttps://www.instagram.com/dreamstolenses

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Transcript

Welcome And Guest Introduction

SPEAKER_00 0:12

Welcome to the Leadership in Law Podcast with host Marilyn Jenkins. Cut through the no-like, get actionable insights, and inspiring stories delivered straight to your ears, your ultimate podcast for navigating the ever-changing world of law firm ownership. In each episode, we dive deep into the critical topics that matter most to you from unlocking explosive growth to building a thriving team. We connect you with successful firm leaders and industry experts who share their proven strategies and hard-won wisdom. So, whether you're a seasoned leader or just starting your journey as a law firm owner, the Leadership in Law Podcast is here to equip you with the knowledge and tools you need to build a successful and fulfilling legal practice.

SPEAKER_01 1:11

Welcome to another episode of the Leadership in Law Podcast. I'm your host, Marilyn Jenkins. Please join me in welcoming my guest, Des Link, to the show today. Des is a former lawyer, author, and health and safety executive whose work bridges law, leadership, and learning. As the author of Beyond the Incident, Practical Tools, Legal Causation, and Applied Work Practice Investigation Practice, he reframes how organizations approach accountability and culture through the lens of evidence, fairness, and trust. Admitted to the bar in Western Australia, Des has led health, safety, and risk functions across construction and infrastructure in New Zealand and Australia. He's also a regular speaker, podcast co-host of Circus of Safety, and consultant helping leaders and lawyers move beyond compliance towards clarity, credibility, and culture that sustains performance. I'm excited to have you here, Des. Welcome.

SPEAKER_02 2:01

Thank you. It's a great pleasure to be here.

SPEAKER_01 2:04

Awesome. Tell us a bit about your leadership journey.

SPEAKER_02 2:07

It's an odd story, I guess. I started studying at university in law school and drove forklifts to pay my way through that. And after getting admitted to the bar, I found that law really wasn't for me, I wasn't. Wasn't a strong advocate. It was just didn't fit my personality profile. And I went back to transport and driving forklifts just to figure out what it was I was going to do. And that's when I got into health and safety. Some might say by accident, but that sounds like a bit of a pun. But I really found my feet there and I found that the skills that I used in safety were, or sorry, in law were very transferable to safety. And from there I noticed that there was a lot of gaps in the way that the safety profession did things. With that knowledge from law, I could see that the way that they used and interpreted evidence in the workplace was lacking. There was a lot of gaps in the way that they conducted investigations, and that's really the basis for writing the book.

SPEAKER_01 3:11

Okay. Excellent. Yeah, it's interesting to see the trends or the things that made you a lawyer working over into health and safety, just analyzing the situations.

SPEAKER_02 3:21

Yeah, absolutely. I found the skills very easily transferable.

Beyond Blame: Why The Book

SPEAKER_01 3:26

Fantastic. So looking at the book, what prompted you to write the book about looking beyond the incident?

The Carpentry Case And Fraud Discovery

SPEAKER_02 3:32

So there was a few incidents that we had early in my safety career where we just stopped at the point where someone did something wrong. It was a fault-finding exercise. And I just felt that it really was unsatisfying to stop at that point. We really didn't understand why, okay, the person did something wrong, but why did they do something wrong? They were they not trained very well? Was the procedure not relevant to what they were doing? Was um was something going on at home maybe that was affecting their ability to make good decisions? There was so much more that was missed in that process. And I think that not only did we do the worker a disservice, we did ourselves a disservice by not seeking to learn more. And it really came home to me when I was able to apply some of the skill sets from law into a safety investigation. We had a carpenter who was cutting, it's called ripping a piece of timber lengthways, and they were using a handheld circular saw. Difficult cut, but also a routine cut. They were holding the piece of timber with one hand and cutting with the other hand and incrementally moving their way up as they performed the cut. This saw hit a knot in the timber and kicked back. And the blade contacted their thumb and gave them a pretty nasty cut. So it was a serious incident, but not so serious that you'd have the regulator involved or anything like that. But still worthy of an investigation. And from a carpentry perspective, it was very clear this person was not following the right way to do it. It's a two-handed tool, and you should clamp down the piece that you're cutting. But when we dug deeper using the techniques that I brought across from law, we actually compared his we dug really deep and compared his resume with his reference letters from when he was recruited. He was recruited from overseas. And the dates didn't match. He'd done a job from this year to this year. And the reference letter that we had for from that employer didn't match in the dates. And there was another reference letter from the CEO of a telecommunications company with a Gmail address, unsigned. So that raised some red flags, and what we were able to determine was that the person wasn't actually a carpenter at all. And what we were actually dealing with was a fraudulent recruitment agent from overseas. And I think that really highlighted to me that there's so much more to be learned once you start applying these principles of evidence and causation to a different context.

SPEAKER_01 6:10

Interesting. So dig in a little deeper into why the accident happens and then you find that out.

SPEAKER_02 6:16

Absolutely.

SPEAKER_01 6:17

Interesting. You say open communication is a recruiting recurring theme in your work. Why is it so difficult for organizations to get this right, especially under pressure?

Getting Honest Evidence Through Better Communication

SPEAKER_02 6:28

There's a lot of stakeholders and stakeholder expectations that come along with these types of things. And it can be difficult to pause and reflect on the type nature of the questions that you're asking and what sort of information you're driving at. And what I've found in this, I'm not just talking about a safety investigation context now. I'm talking about any communication where you need to interrogate and get detailed information from someone that's in a manner that's able to be validated or weighed accordingly so that you can make it make an informed decision. So that could be reporting, it could be soliciting information from a client. Taking the human approach, making sure they're comfortable, making sure your questions are well suited to the interaction, watching your own body language. All of these things factor into whether you're getting a sincere, open, and honest account from the person you're speaking to.

SPEAKER_01 7:26

Yeah, not having them afraid for their job, but during an investigation, so you're getting some honest answers.

SPEAKER_02 7:32

Yeah, absolutely. Not be such an adversarial setting. It might be just understanding a report to the board. And the board might be interrogating the manager that's written this report. And there's a way to go about that. And I think the skills that we learn in law school, particularly when we're talking about cross-examination questioning techniques, I'm not suggesting we stand over and berate someone, but there's ways of asking questions that that can solicit good evidence, good narrative evidence in support of a report to the board, for instance.

Box-Ticking Vs Learning In Investigations

SPEAKER_01 8:09

Okay, I agree. Yeah. And we also talk about whenever workplace investigations are just stick to and focus to compliance. What gets lost when organizations do treat investigations like just a box-ticking exercise to get just get it done and get it put away?

SPEAKER_02 8:25

I've seen that play out with even with the regulator in some instances where something happens and they come to site and they're the first thing they ask is show me all your documentation. And if you really boil it down to it, you might have the documentation. If someone signed a piece of paper, like a safety document, or they've signed some sort of declaration. What is that actually evidence of? It's evidence that someone's marked a piece of paper with a pen and nothing more. And it's not until you speak to a person that you actually say, is this your signature? Yes, it is. Okay, now we're talking like this is now meaningful evidence because we're speaking to a person. And really, I would like to see that approach shift. Instead of asking for the documents, let's talk to the people involved and get their story. And I think when we target the documents, it's easy to do that because it's there, it's written. You can print another copy, you can email it. But we really do ourselves a disservice. There's so much more to be learned from speaking to people and having a good conversation.

SPEAKER_01 9:33

So you think that a lot of businesses will just go through it just to say, okay, we did the investigation, it's done, without really getting to the heart of the matter and what happened.

SPEAKER_02 9:42

Yeah, certainly. I've seen that myself where a safety investigation just becomes a bureaucratic exercise. But just going through the motions of doing this without making a sort of genuine inquiry into what happened so that we can learn something or prevent an incident from happening again.

Handling Bullying Claims With Care First

SPEAKER_01 9:58

I love that. And figuring out why, now how and why. And in the office space, bullying complaints can happen as well as well. It's emotionally charged, they can be complex. What mistakes do you see organizations make most often when they're handling cases like that?

SPEAKER_02 10:16

That's a good question. And my immediate thoughts went to it's one person's word against another, how do we manage that? How do we weigh that? But one thing that a lot of people miss is ensuring that the people who need care and support are getting that support. And I've been involved in bullying investigations before where the bullying allegation was made and the alleged victims were sent home. And there was no offer of support in any way, no reference to counseling or referral to counseling. And I was interviewing this person thinking, okay, I'm going to get some great evidence here. And the person broke down in front of me and I said, Have you, you know, what's happened since the you made the allegations? And they said, Well, nothing. Basically, I've been sent home to test it with my own thoughts and had no updates. All I've had is a the conversation with you today. And something was really missed there. I actually paused the interview and immediately got a referral to them to some sort of counseling or someone that could offer assistance and support. But we miss that. It can be a traumatic experience for some people. Even before the allegations are made out, people need support.

SPEAKER_01 11:31

Yeah, I mean it's things like bullying. You what we all went through it in school and some of us are scarred for that. And when it's happening in the workplace and you need the job, it's very difficult. And then when you finally come forward, how long have you been going through that? So there is a lot. I yeah, doing the getting the counselor, something set up to support that person.

SPEAKER_02 11:51

Yeah, absolutely. So thinking that even when an incident happens and a serious one, my first thought is always who's affected and are they getting the support that they need, whether that's medical, whether that's counseling, whatever that looks like. That's number one.

SPEAKER_01 12:10

Love that. I love that. So let's talking about that. How can investigators balance fairness to all the parties while they're taking allegations of bullying or misconduct seriously?

SPEAKER_02 12:22

It's a very question because we're bringing our own biases, both conscious and unconscious, and and so are the is everyone involved. And even sometimes the way we frame this is an investigation. So automatically it's a very formal process. There's authority involved, there's a wrong, and that there's a right that needs to be made from that. There's a victim, there's a perpetrator. So we're using this language, and that's painting a picture of how things are going to pan out and framing this. I think it's important to take a step back and for an investigator in the first instance to actually make a note of, okay, I've been I've been briefed with this investigation, whether that's I'm coming in external or internal. This is my thoughts at the moment. This is what I'm thinking. And it's a kind of note to self. And it's trying to s tease out any bias that the investigator might have. It's not with the intent to eliminate that bias, because realistically, we're not going to be able to eliminate bias. All we can do is minimize the effect that bias is going to have. So getting in early, putting your thoughts down, and revisiting that throughout the investigation, and it's especially at the end, where you can put your thoughts down on paper again, compare them to the beginning, and see if there was anything that maybe you had an attribution bias that influenced the way you asked questions and influenced the order in which you spoke to witnesses, and you can acknowledge that at the end. So I find that's a really useful tool.

SPEAKER_01 13:56

I love that. And then so you've taken all of the different statements and then you can look back over all of them as a group and see did I ask that correctly, did I lean in a different direction because I had something else on my mind with a different person?

SPEAKER_02 14:10

Sure. And by revisiting that at least a couple of times during the investigation, you might have the opportunity to go back and ask that question in a different way.

Purpose, Ethics, And Legal Causation

SPEAKER_01 14:21

Right. Very interesting. So you've worked across law, health, safety, and risks. How has that cross-disciplinary experience shaped the way that you approach workplace investigations? So we've talked about you looking at how to question and do those from your law. How does everything else culminate?

Body Language And Non-Adversarial Questioning

SPEAKER_02 14:42

There was a range of things really. First and foremost is probably ethics. And when I researched for the book, I couldn't find anyone who had talked about investigation ethics. And so I took a lot of what I'd learned from law and applied that to an investigation to try and determine, okay, what's the ethic that we're trying to achieve from undertaking an investigation? My best guess, and I'm no ethicist, but my best guess is that it's to produce meaningful findings. And so that helps to measure when you have a choice to make, and both options are terrible. They're both the wrong choice, but you need to make one. That can help guide which choice it is you need to make, which one's going to result in more meaningful outcomes. I looked at the purpose of an investigation. So often in safety, the purpose of an investigation isn't stated, but it can vary considerably. The regulator is looking for evidence of for a prosecution. A sincere employer is probably looking for ways to prevent this from happening again. Another employer might be looking at ways to, well, who's at fault for this? Who do I blame? So there's by stating that clearly and up front, I'm not saying one's bad and one's good, but I'm saying having it clearly stated at the beginning can really influence the outcome of an investigation. So we talked about evidence. We also talk about legal causation being applied to a safety investigation. And I think there's a real synergy there because legal causation, which no doubt your audience will be familiar with, is developed over centuries through novel cases coming before the courts. Which is similar to the way safety incidents arise. They're novel cases. They arise when they arise, you can't preempt them. And so the principles of causation which have developed from war. And I've adapted them to be able to be applied to a safety investigation. I've found it remarkably effective.

SPEAKER_01 17:18

I love that. And then just you can take that and you're training people to continue that whenever you step out of the organization.

SPEAKER_02 17:25

Absolutely, yeah. Yep.

SPEAKER_01 17:28

I love that. And your work incorporates tools like body language awareness and cross-examination techniques, again, back from Lamar. How can those tools improve the quality of investigations without turning like adversarial?

Power Dynamics And Controlling The Narrative

SPEAKER_02 17:41

It's actually probably your best tool to prevent it from becoming adversarial. If you can if you can present yourself through body language and through the choice of words in the language that you're using as someone who is good to speak to, safe to speak to, you're going to get better oral evidence. You're going to get a more frank and open account from the witness. And you and it all depends on how you frame it and the body language coming across as genuine. Obviously, it helps if you are genuine. But there are some techniques that you can use to enhance that. We talked about choice of words and the use of investigation and that bringing in a sense of formality. You can just say, hey.

SPEAKER_01 18:24

And interrogation just seems threatening.

SPEAKER_02 18:25

Yeah, absolutely. And we get this Hollywood image of a CIA agent standing over someone, but it's about how you frame it. So if you come in and say, hey, this allegation's been made, it's serious, we're taking it serious, but today I just want to have a chat with you. I'm interested in you. Let's have a talk about what happened. And I just want you to say it in your own words, in your own time, and start wherever you want to start. And that is a very different framing. I didn't use the word investigation, I didn't use the word any sort of formality. I just said we're just two people talking. That's it.

SPEAKER_01 19:02

Put them at ease so that you get better information. Yeah. And do you help teach like the body language to understand the person that you're interviewing as well? That so if you're seeing that they're overly, say, aggressive or frightened, then you can address the interviewer can address that and help calm them before they they start talking or answering questions.

The Three Priorities: People, Property, Notifications

SPEAKER_02 19:22

Yeah, absolutely. So there's a there's an opportunity to identify the body language and especially a shift in body language, and adjust what you're doing to suit that. And that it depending on what you're seeing, it might be an option of bringing the back to a more comfortable position, or it might be terminating the interview because the person has become so agitated or so aggressive that there's really no value in continuing. Maybe you can revisit that at a later date. But you can learn a lot from just watching someone's body language and watching someone's body language shift.

SPEAKER_01 20:00

True, especially depending on the questions that are being asked.

unknown 20:03

Yeah.

SPEAKER_02 20:03

Yeah.

unknown 20:03

Yeah.

SPEAKER_01 20:04

I do find that a lot of investigations mostly the outcome is to find someone to blame. So I love what you're talking about is finding a deeper meaning behind the investigation, the reason to do it. And absolutely. So thinking about what leaders should understand about power dynamics after interviews, witness statements, how would they understand and move forward? So an accident's happened, something, a complaint's happened, we've done the leaders have done the investigation. How does that change the power dynamics, or how would you suggest that someone move past that if you didn't fire the employee, you kept the employee, and just keeping the credibility of the team?

Key Takeaway: Value Of Oral Evidence

How To Connect And Closing Remarks

SPEAKER_02 20:43

It's a really difficult thing to manage because people are going to form their own ideas pretty quickly about what happened and who's at fault. And when they don't see people being held to account, that can create problems with you, with your work culture. And what I would suggest is control the narrative to some extent. That's one of your earliest priorities, is to make sure that the story of what happened is controlled to some extent. Because where there's an absence of information, people imagine their own things to fill that gap. And that's what you don't want. Now it's difficult to manage because at the outcome of the investigation, because if disciplinary action does follow, typically it's confidential. And it can't be shared. And so when people don't see that happening, it's very difficult to it might actually be happening, but they're just not allowed to see it happening. So it might be very difficult to manage that as well. There's no clear answer to that. I think that if you circle around and say, look, we've we found fault with with the system and the way that we manage things, this is what went right, this is what went wrong. There's a way to frame that again so that you can indicate that accountability has been achieved. But you don't necessarily need to breach confidentiality to do that.

SPEAKER_01 22:07

Excellent. So that kind of leads into my next question because many organizations feel that investigations are going to hurt and damage the company culture. And so I think what you're saying is just be clear about it without breaking confidentiality, but fill those voids. Don't let the rumor mill get stuck and the bad feelings take out, take over before by being open and communicative.

SPEAKER_02 22:29

Absolutely. I talked earlier about your first priority being people. I actually break it down into three steps. So if you get the call, then for me, it's a call that someone's been injured or something serious has happened on site. My first priority is people. Here's everyone that needs help getting that help. Whether it's medical or counselling or whatever. My next priority is property or the environment that they're in. Is it safe? Is it going to get worse if we don't do something? If maybe there's a chemical spill that's heading towards stormwater drains. So if we don't stop that, things are going to get a lot worse. So that's my next question. And then my third question is which kind of revolves around notifications. Who knows? And who needs to know? And that can cover two things. It can be do we need to call our attorneys right now and get them involved? Do we need to call the person's family? There's so many stakeholders it might be relevant to include, but it's also who knows that shouldn't know. Where's that rumor mill starting? And where's that narrative beginning?

SPEAKER_01 23:33

I love that shutting it down before it gets out of hand, because it can get out of hand very quickly.

SPEAKER_02 23:38

Absolutely.

SPEAKER_01 23:39

If there's one thing that you hope leaders and lawyers take away from your book and your work, what do you most want them to remember when they're faced with a difficult investigation?

SPEAKER_02 23:49

I think if I would leave your listeners with one thing, it would be to understand the value of oral evidence and how to tease out the best oral evidence from from your investigation. And it's really no different to the courtroom. It's just you adapt those same tools in a different way to the workplace. And it's about providing comfort for the interviewee. It's about watching their body language, and it's about being honest and genuine about your approach.

SPEAKER_01 24:20

And you they you also can use the same, you use the same thing that you're using when you do jury selection, or you're working with a witness in a trial. So you're working with body language, you're working with tone, and that kind of thing to get to ask your questions.

SPEAKER_02 24:34

Yeah, absolutely. So it's it's being conscious of how you uh coming across.

SPEAKER_01 24:41

Simple, but sometimes you get caught up in the moment.

SPEAKER_02 24:44

Absolutely, yeah.

SPEAKER_01 24:46

Wow. Interesting stuff. I'm I'm really appreciate you being here. And what how can our listeners reach out to you or connect with you if they want to do that?

SPEAKER_02 24:54

So the best way to connect with me is on LinkedIn. I'm quite active there. If you search for Desire Link, I should be pretty easy to find with a name like that. And equally on Amazon, if you want to, if you're interested in the book, it's Beyond the Incident by Desirec. Again, it should be pretty easy to find.

SPEAKER_01 25:11

Fantastic. And we'll have links to all of that in the show notes. And absolutely, I think the book is going to be a very important book. And so if you're listening, grab a copy of the book. And uh thank you so much for being here today. This has been very interesting.

SPEAKER_02 25:23

It's been a great pleasure. I'm very grateful. Thank you.

Host CTAs And Community Resources

SPEAKER_01 25:26

Thanks for joining me today for this episode. As we wrap up, I'd love for you to do two things. First, subscribe to this podcast so you don't miss an episode. And if you find value here, I'd love it if you would rate it and review it. That really does make a difference in helping other people to discover this podcast. Second, you can connect with me on LinkedIn to keep up with what I'm currently learning and thinking about. And if you're ready to take the next step with a digital strategist to help you grow your law firm, I'd be honored to help you. Just go to LawmarketingZone.com to book a call with me. Stay tuned for our next episode next week. Until then, as always, thanks for listening to Leadership in Law Podcast, and be sure to subscribe wherever you listen to podcasts so you don't miss the next episode.

SPEAKER_00 26:11

Thanks for joining us on another episode of the Leadership in Law Podcast. Remember, you're not alone on this journey. There's a whole community of law firm owners out there facing similar challenges and striving for the same success. Head over to our website at LawMarketingZone.com. From there, connect with other listeners, access valuable resources, and stay up to date on the latest episodes. Don't forget to subscribe and leave us to review on your favorite podcast platform. Until next time, keep leading with vision and keep growing your firm.