When serious allegations are made against an employee, an organisation may decide to appoint an external investigator to conduct a formal workplace investigation.
The advantage of this approach is that (when it is done properly) it produces robust findings of fact in relation to the allegations. This then enables the employer to confidently determine the appropriate disciplinary or other actions for findings of proven allegations.
Recently a decision of the Honourable Associate Justice Mary-Jane Ierodiaconou in the Supreme Court of Victoria reviewed the workplace investigation process used by Worklogic, and we are pleased to say that our rigorous approach came through with flying colours!
Following procedural fairness for robust findings
In conducting a workplace investigation, a workplace investigator must follow a process that is procedurally fair. This process should ensure:
- that the respondent has a clear understanding of the allegations against them; and
- that they are given a reasonable opportunity to respond to the allegations and the evidence.
The investigator must then make findings of fact based on the evidence gathered in the investigation. Following a process that adheres to procedural fairness will mean that the findings made are robust and are able to with stand scrutiny in any jurisdiction.
Worklogic’s process reviewed
A recent was concerned in part with the nature of the information given to the plaintiff after the investigation process had been completed.
One area of concern was whether the failure to provide an unredacted copy of the report to the Plaintiff breached s 20(3) of the Public Administration Act or cl 21 of the Victorian Public Service Enterprise Agreement 2016.
Ierodiaconou AsJ found that there was no breach of these provisions – in part because the investigation process followed by Worklogic’s investigator had afforded the Plaintiff procedural fairness during the investigation.
The judge carefully reviewed the investigation process that had been undertaken by Worklogic‘s investigator. She determined that procedural fairness had been provided to the plaintiff, in that:
- The plaintiff had been provided with detailed allegations in relation to the alleged wrong doing that was being investigated.
- The plaintiff had been given a fair opportunity to comment on adverse information that was credible, relevant and significant.
The judge reviewed the report provided by Worklogic and found that that the plaintiff had failed to establish that receiving the information redacted in the report would make any practical difference to the outcome of the investigation or the proposed disciplinary outcome.
What obligation is there to provide a completed workplace investigation report to a respondent?
The decision also considered what the respondent was entitled to receive from the employer as decision maker once the report is finalised.
Ierodiaconou AsJ looked at the case law around procedural fairness and found that a person directly affected by the decision-making process should generally be ‘given the opportunity of ascertaining the relevant issues’ and ‘be informed of the nature and content of adverse material.’
The judge found that the established principles around the opportunity to be heard does not require the decision-maker to adopt an ‘open file’ providing access to every piece of evidence or that all the material should be given to the respondent verbatim.
The judge found that it was not necessary at all to provide a copy of the report (redacted or unredacted) to the plaintiff. She found that all that was necessary for the employer to have provided to the plaintiff was that he should have been provided with a summary of the findings and a determination on the steps that would be taken as a result of the findings.
The judge confirmed that:
- It is not necessary for the employer to provide a respondent with full copies of witness interviews or names of witnesses in circumstances where he or she had been provided with the full allegations and the contradictory evidence.
- It is not necessary for an employer to provide the respondent with deliberative material.
- It may be enough (depending on the circumstances) for the respondent to be provided with the ‘substance of the issue’ that affects the respondent. The fundamental issue being whether the respondent has the opportunity to address issues that are relevant to his or her interests.
This is a resounding affirmation of the thorough and procedurally fair approach always taken by Worklogic investigators.
Our upcoming course Conducting Effective Workplace Investigations will be held on 28 August 2019 in Melbourne and Sydney. The training includes a copy of our textbook – ‘Workplace Investigations – A practical Guide for HR Professionals’ . Together, these are valuable resources for anyone seeking to implement a robust workplace investigation methodology that will withstand the highest level of legal scrutiny. Register now.
About Jodie Fox
Jodie Fox is passionate about helping people and organisations manage workplace conflict in a productive way. She specialises in workplace investigations, workplace reviews and mediations to address and resolve complaints and foster a positive workplace culture. An experienced employment lawyer, she works with clients from a diverse range of industries providing pragmatic and strategic advice. She is a knowledgeable and engaging writer and speaker.
Please contact Jodie for an obligation free consultation via email or call (03) 9981 6558.