A breach of natural justice and procedural fairness in conducting an investigation could make the investigation findings unreliable.
In this newsletter, we consider some “tips and traps” from the recent case of Lohse v Arthur. This pertinent case highlights the importance of conducting investigations fairly and without bias. Whilst the case itself highlights how a public sector grievance procedure was not followed, it also examines principles of natural justice and procedural fairness that are relevant to all employers.
The background context to the investigation that was scrutinised in Lohse v Arthur was:
- The Applicant was an Australian Public Service (APS) employee.
- The Applicant was investigated over allegations of inappropriate behaviour that was alleged to have taken place at a hotel with three other APS employees over a two day period.
- The allegations included sending inappropriate text messages to a female employee (Ms Barclay), purchasing a rose and “love heart chocolate” for Ms Barclay and inappropriately rubbing Ms Barclay’s hand and leg. It was also alleged that the Applicant had made inappropriate gestures to passing females, including saying words to the effect of: “here puss puss puss”.
- The first Respondent, Mr Arthur, was appointed to investigate the allegations (“the Investigator”). After conducting his investigation, the Investigator concluded that the allegations against the Applicant were substantiated.
- The Applicant was subsequently demoted one classification level.
- The Applicant instituted proceedings against the Investigator and two other Respondents, challenging the basis of the decisions and process by which the decisions led to the reduction in his classification.
The Commission found that the investigation arising from the Applicant’s alleged conduct was flawed because the Applicant had not been afforded natural justice and procedural fairness during the investigation.
As set out below, the Commission found the following deficiencies with the investigation, amongst a range of broader problems.
Failure to follow mandatory procedural guidelines
Following the Applicant’s written statement of response to the allegations, the Applicant was not provided with an opportunity by the investigator to ‘make an oral statement in relation to the suspected breach’, despite it being a mandatory procedural requirement. The Commission considered that this was not in accordance with procedural fairness, noting too that witnesses had been given the opportunity to be interviewed.
Opportunity to comment on evidence
The Applicant was not given the opportunity to respond to and cross-examine the evidence of two of the employees who provided evidence against him.
The Applicant was not given the opportunity to respond to conduct that was alleged to have occurred prior to the hotel incident involving allegations that the Applicant had viewed Ms Barclay and her breasts in a “sleazy manner”. The Commission held that the information which the Applicant was not provided with an opportunity to respond to was credible, relevant and significant to the determinations to be made by the Investigator. Accordingly, it would have been unfair to deny the Applicant the opportunity of dealing with it without there being a “real risk of prejudice, albeit subconscious, arising from Mr Arthur’s possession of the relevant information and Mr Lohse’s ignorance of it”.
Lack of an “open mind”
The investigator did not bring an open mind to the determination of the issues and the evidence was sufficiently strong to draw a conclusion of either actual or apprehended bias, thereby constituting a denial of natural justice to the Applicant.
In the course of the Investigator’s interview with Ms Barclay, the Investigator’s actual or apprehended bias was evidenced as follows:
i. The Investigator “led” Ms Barclay by suggesting on two occasions that the purpose of the meeting at the hotel with the Applicant and the three APS employees was essentially an employment based “debriefing”. On the first occasion, the Investigator raised it as a question. On the second occasion, the Investigator asserted it as a conclusion. The Commission upheld that the word ‘debriefing’ was one suggested by the Investigator as none of the four APS employees who gathered at the hotel at the time of the complaint suggested that the purpose of the gathering was to effect a ‘debrief’.
ii. When Ms Barclay referred to the Applicant’s previous behaviour on work trips with another employee, the Investigator enquired what sort of behaviour she was referring to. Instead of allowing Ms Barclay to answer the question, however, the Investigator suggested the word “similar”, that is, “similar” behaviour had occurred. The Investigator then proceeded to suggest that the Applicant had been “making advances”, which was then embraced by Ms Barclay, who agreed with the Investigator’s proposal.
iii. The Investigator suggested to Ms Barclay that another witnesses’ reaction to what happened when the Applicant allegedly presented Ms Barclay with a rose was one of “surprise”. The Investigator made that assertion even though Ms Barclay failed to articulate any matter to the Investigator which justified him making that assertion.
iv. When Ms Barclay said to the Investigator that one of the alleged statements attributed to the Applicant “intimidated” her, the Investigator impliedly accepted the claim by saying ‘Yes, I can understand that’.
v.In relation to the Applicant’s alleged “here puss puss puss” remark, Ms Barclay said to the Investigator “he just disgusted me”. The Investigator appeared to accept the premise of the observation by saying and repeating “I’m not doubting that”.
vi. Ms Barclay said of the Applicant’s alleged behaviour: “it’s not the behaviour that I am used to being around…you know, starting in a workplace that you’re on an Executive Level 2 position, I thought that…you should be…better behaved.” The Investigator again indicated a seeming acceptance of the premise of the observation by saying: “…yes, I agree.”
vii. Before the interview concluded with Ms Barclay, the Investigator was recorded as saying: “…there is a bit more I’d like to go through. Actually…the remainder of this…is fairly good. It’s all good, anyway”. The Investigator therefore appeared to have communicated to the witness an acceptance of what she had said.
Avoiding denial of “natural justice” or breach of procedural fairness in workplace investigations
There are plenty of “tips” to take away from the conduct of the investigation scrutinised above:
- Comply with policy/procedural requirements. Whilst almost so obvious that it goes without saying, where the employer has written policies and procedures for investigating allegations, do make sure that they are followed. If you consider you may not be able to meet “mandatory requirements”, seek advice before doing so. The consequences of not meeting such as requirement might be significant.
- Do not quarantine any information that is “credible, relevant and significant”. Participants subject to an investigation, including the Respondent, should be provided with an opportunity to respond to adverse information that is credible, relevant and significant. The question of whether adverse evidence is ‘credible, relevant and significant’ must be determined by an investigator before the final decision is made by the investigator. Information is “credible, relevant and significant” if it cannot be dismissed from further consideration by the decision-maker before making the decision concerning the allegation/s.
- Words used by an investigator can suggest possible or even actual bias. Investigator’s should approach the investigation with an open mind and not pre-judge the situation. Investigators and decision makers should act in good faith and without bias. Remarks made by an investigator in the course of taking statements from witnesses such as ‘yes I can understand’ and ‘yes I agree’ could indicate that the investigator did not bring an impartial mind to his or her decisions and had actual or perceived bias.
If the rules of natural justice and the obligation of procedural fairness are breached in the course of an investigation, public sector investigators, such as Mr Arthur, in the recent case of Lohse v Arthur, might find their findings scrutinised in subsequent proceedings.
In any event, all employers should follow the rules of natural justice and the obligation of procedural fairness in relation to conducting investigations scrupulously so that they are reliable and rigorous.