Workplace Investigations Best Practice

Conducting workplace investigations in Australia is a complex task that requires a thorough understanding of the relevant legislation and common law, as well as the principles of confidentiality and procedural fairness. To ensure that investigations are conducted in a fair and unbiased manner, it is essential to be familiar with the Fair Work Act 2009 (the “Act”) and the relevant case law.

The Fair Work Act

The Act sets out the rights and obligations of employers and employees in relation to workplace investigations. Under the Act, employers have a duty to provide a safe and healthy working environment for their employees, and must take all reasonable steps to prevent discrimination, bullying and harassment. In the event that an employee makes a complaint of this nature, it is the employer’s responsibility to conduct an investigation and take appropriate action.

Confidentiality

Confidentiality is a key principle in workplace investigations. The Act requires that employers must keep all information about the investigation confidential and must not disclose it to any person without the employee’s consent. This applies to all information, including the identity of the employee making the complaint, the nature of the complaint and the outcome of the investigation.

Procedural Fairness

Procedural fairness, also known as natural justice, is a fundamental principle that applies in the context of workplace investigations. Procedural fairness requires that all parties involved in an investigation be given a fair and reasonable opportunity to present their case, respond to allegations, and be heard before any decision is made.

In the context of a workplace investigation, procedural fairness requires that the investigation be conducted in a manner that is fair, impartial, and objective. This means that the investigator must gather all relevant evidence, interview all relevant witnesses, and provide the employee who is the subject of the investigation with an opportunity to respond to the allegations made against them.

To ensure procedural fairness in a workplace investigation, employers should:

  1. Provide written notice of the allegations and the investigation process: This includes providing details of the allegations, the investigation process, and the employee’s right to respond.
  2. Conduct a thorough and impartial investigation: This means collecting and considering all relevant evidence, interviewing all relevant witnesses, and providing the employee with an opportunity to respond.
  3. Allow the employee to have a support person present: The employee should be given the opportunity to have a support person present during any interviews or meetings.
  4. Provide a fair and reasonable opportunity to respond: The employee should be given adequate time to respond to the allegations and the evidence gathered.
  5. Provide written findings and recommendations: The investigator should provide written findings and recommendations to the employer, including any disciplinary action or other outcomes.

Failure to provide procedural fairness in a workplace investigation can lead to allegations of unfair treatment, discrimination, and even legal action. Employers who fail to follow procedural fairness in their investigations may be at risk of breaching their obligations under the Fair Work Act 2009, discrimination laws, and other relevant legislation.

Common Law Principles

Common law principles are the legal principles and decisions made by courts in the past that influence the interpretation and application of the law in the present. In the context of workplace investigations, common law principles have had a significant impact on the development of best practices in Australia.

One of the key common law principles that applies in the context of workplace investigations is the duty of care owed by an employer to its employees. This duty of care requires employers to take reasonable steps to provide a safe and healthy workplace, including investigating and addressing any incidents of misconduct or workplace issues.

Another common law principle that applies in the context of workplace investigations is the principle of procedural fairness or natural justice. As discussed earlier, procedural fairness requires that all parties involved in an investigation be given a fair and reasonable opportunity to present their case and respond to allegations before any decision is made.

The common law principle of proportionality is also relevant in the context of workplace investigations. This principle requires that any disciplinary action taken by an employer be proportionate to the misconduct committed by the employee. In other words, the punishment should fit the crime.

In addition to these common law principles, the courts have also developed the implied term of mutual trust and confidence in employment contracts. This term requires that employers act in good faith towards their employees, and that any investigations or disciplinary action be conducted in a manner that does not undermine the trust and confidence between employer and employee.

Process

The process of conducting a workplace investigation typically involves the following steps:

  1. Determine the scope and objective of the investigation: The employer should determine the scope of the investigation and the objective they wish to achieve. This may involve identifying the issues that need to be investigated, the relevant policies and procedures, and the individuals involved.
  2. Appoint an investigator: The employer should appoint an impartial and objective investigator who has the necessary skills and experience to conduct a fair and thorough investigation.
  3. Conduct a preliminary assessment: The investigator should conduct a preliminary assessment to determine the nature and extent of the alleged misconduct, the relevant policies and procedures, and the individuals involved.
  4. Develop an investigation plan: The investigator should develop an investigation plan that outlines the steps to be taken, the evidence to be gathered, and the individuals to be interviewed.
  5. Gather evidence: The investigator should gather evidence, which may include documents, emails, text messages, and witness statements. It is important for the investigator to ensure that all evidence is collected and handled in a manner that preserves its integrity.
  6. Interview witnesses: The investigator should interview all relevant witnesses, including the complainant, respondent, and any witnesses to the alleged misconduct. The investigator should ensure that all interviews are conducted in a fair and objective manner.
  7. Analyse the evidence: The investigator should analyse all the evidence gathered and determine whether the allegations have been substantiated.
  8. Prepare a report: The investigator should prepare a report that sets out the findings of the investigation, including the evidence gathered, the conclusions reached, and any recommendations for further action.

Take appropriate action: Based on the findings of the investigation, the employer should take appropriate action, which may include disciplinary action or other corrective measures.

Follow up: The employer should follow up with all parties involved in the investigation to ensure that the recommended actions have been implemented and that the workplace is functioning effectively.

Appointing an Investigator

When conducting a workplace investigation, it is important for the employer to appoint an investigator who is impartial, objective, and has the necessary skills and experience to conduct a fair and thorough investigation. Here are some factors that employers should consider when appointing an investigator in the context of a workplace investigation:

  1. Impartiality and Objectivity: The investigator should be free from any conflicts of interest and have no personal stake in the outcome of the investigation. This means that the investigator should not have any prior relationship with the complainant, respondent, or any witness. In addition, the investigator should be able to approach the investigation with an open mind, without any preconceived notions or biases.
  2. Experience and Expertise: The investigator should have the necessary experience and expertise to conduct a thorough and fair investigation. This means that the investigator should have knowledge and experience in conducting workplace investigations and be familiar with relevant laws and regulations.
  3. Communication Skills: The investigator should be skilled in conducting interviews and have the ability to communicate clearly and effectively with all parties involved in the investigation.
  4. Confidentiality: The investigator should be able to maintain confidentiality throughout the investigation process. This includes ensuring that all evidence gathered is kept confidential, and that information is only shared on a need-to-know basis.
  5. Timeliness: The investigator should be able to complete the investigation in a timely manner, while still ensuring that the investigation is conducted thoroughly and fairly.
  6. Compliance with Legal Obligations: The investigator should be familiar with and comply with all relevant laws and regulations, including those relating to privacy and discrimination.

It is also important for the employer to ensure that the investigator is properly trained, and that they have a clear understanding of the investigation process, including the employer’s policies and procedures for conducting investigations.

Regardless of who is appointed, you must ensure that the investigator has no conflict of interest that could taint the investigation proceedings.

Holistic View

It is important to remember that workplace investigations are not only about determining whether a complaint is substantiated or not, but also about addressing the underlying issues that led to the complaint being made. This includes taking steps to prevent future incidents from occurring and ensuring that the employee making the complaint feels supported and respected.

Key Takeaways

Conducting workplace investigations in Australia requires a thorough understanding of the relevant legislation and common law principles. By following a structured process and maintaining confidentiality throughout the investigation, employers can ensure that investigations are conducted in a fair and impartial manner.

If you have any concerns or questions about workplace investigations, please don’t hesitate to contact us via the contact form or by email megan@mmchr.com.au

 

 

 

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