Dec 02

Procedural fairness in investigations of reportable conduct allegations

A reportable conduct investigation is necessarily different, and can sometimes be more complex to navigate, than other types of workplace investigations.

In a reportable conduct context, it is obviously imperative that the investigator ensures all children are provided the opportunity to be involved (unless there is a very good reason that they are not) and that they are provided with a supportive and comfortable environment to report their concerns and/or their version of events. This will often necessitate tailoring an approach (for example, the time or location of your interviews or your approach to questioning) to account for the particular needs of the child.

However you choose modify your approach to a reportable conduct investigation there remains, of course, a requirement that the investigation be conducted in a procedurally fair manner.

One of the key concepts of procedural fairness is that the respondent (or subject of allegation) is provided with the opportunity to comment on all “credible, relevant and significant” evidence that is “adverse” to that person. During the course of a workplace investigation, this principally occurs during the contradictory evidence process.

The Fair Work Commission recently considered some practical examples of this requirement in the case of Independent Education Union of Australia v Father Nicholas Pearce [2020] FWC 5416.

The case required the Fair Work Commission to exercise its arbitration power, in interpreting Clause 13 of the Victorian Catholic Education Multi-Enterprise Agreement 2018 (the Agreement) in relation to way in which the school had managed an investigation process in relation to two allegations of potential reportable conduct. Whilst the case dealt with the specific requirements of this agreement, it does provide guidance as to the requirements of procedural fairness in other contexts.

What happened?

The background to the dispute was that a teacher employed by Father Pearce at a Catholic primary school in Kew, was alleged to have pulled a student by the ear (Allegation 1) and said words to the effect of “I’m like Miss Trunchbull I can grab [the student] by the ear and throw [the student] out the window if I want to” (Allegation 2).

The school conducted an investigation into the concerns raised, finding that the first allegation was substantiated and also that the proven conduct amounted to reportable conduct. The second allegation was not found substantiated.

Clause 13 of the Agreement governed the process which Father Pearce (as the employer and head of entity for Reportable Conduct purposes) was required to follow in managing the investigation of the allegations, arriving at outcomes and determining the appropriate response to any proven conduct.

In arbitrating the dispute, the Commission was required to consider 3 specific questions in relation to whether the investigation had been conducted in accordance with clause 13 of the Agreement. All questions involved a consideration of whether Father Pearce had breached that clause’s procedural requirements, given that at various stages of the investigation he had declined to provide the subject of allegation information about:

  • The dates that the witnesses were interviewed;
  • The questions put to the witnesses;
  • A detailed summary of evidence relating to what each witness said;
  • Confirmation of whether the student that was the alleged victim, was medically assessed in relation to the incident; and/or
  • The investigation report.

Consideration of what is meant by ‘procedural fairness’

Both parties agreed that “procedural and substantive fairness” (which clause 13.1(a) provided should underpin the application of the procedure set out in that clause) should be given its ordinary meaning in the context of the principles that have developed by the common law in Australia over many years. In relation to what this meant, Commissioner Cirkovic noted that:

“…it is uncontroversial that the parties appear to have proceeded on the basis that the common law establishes no fixed content to the dur to afford procedural fairness and that procedural fairness is essentially a flexible obligation to adopt fair procedures that are appropriate and adapted to the circumstances of a particular case. (drafter’s emphasis added).

In this context, the Commissioner then considered whether in failing to provide the subject of allegation with the information listed above, the subject of allegation had been “provided with an opportunity to seek clarification or respond to the concerns, the investigation arising from the concerns” and the sanctions proposed by Father Pearce (as required by Clause 13.3 of the Agreement).

Dates of interview

Noting that the teacher had been provided with the dates of interview at various stages during the investigation, the Commissioner was satisfied that this information was required to be provided to the teacher, as it was “credible, relevant and significant”. To the extent that there existed more information about the dates of interviews, that should also be provided.

Questions put to witnesses and detailed summary of evidence

The Commissioner determined that although there was no general rule requiring the provision of questions or a detailed summary of witness evidence, it ought to have been disclosed to the subject of allegation on this occasion. In arriving at this conclusion, the Commissioner appeared to weigh the following factors:

  • There was some contest between Father Pearce and the subject of allegation as to what she had been told about the witness evidence during a meeting between them during the investigation process;
  • The evidence suggested that whilst the teacher had been provided with “some explanation of evidence given by witnesses” that explanation could not be characterised as “a detailed summary of evidence”;
  • The witnesses in this matter were children aged 11 (or younger) and “as such may be particularly vulnerable to suggestive or leading questions.” The Commissioner agreed with the Union’s submission that “questions which have been put to the students…[are] as important as their answers”; and
  • CCYP guidelines as to confidentiality and privacy which are intended to ensure investigation integrity and the protection of witnesses who might otherwise be reluctant to come forward.

In relation to the last factor noted, the Commission required that any further information to be provided to the respondent teacher be appropriately redacted to remove reference to the children’s names. The Commission reasoned that the teacher had already been notified of the identity of the witnesses who participated in the investigation and there was no need to “compromise” those children any further.

Confirmation about whether the student was medically assessed

In arriving at a conclusion that the proven conduct was also reportable conduct, it follows that Father Pearce had also concluded that the teacher had caused “significant harm” to the student (“behaviour that is likely to cause significant emotional or psychological harm” being one of the five types of reportable conduct). In rejecting the argument that this information was required to be provided the Commission noted:

  • This information (that is confirmation of whether the child was assessed) was not ‘adverse’ to the subject of allegation or ‘credible, relevant or significant’ to the investigation; and
  • The information was not required to be provided to comply with the obligation of Clause 13.

Relevantly, the Commission also specifically rejected the Union’s argument that Father Pearce was required to provide ‘full disclosure’ of material or “all matters or all materials” considered or in his possession.

A copy of the investigation report

There was contention between the parties about whether a ‘formal meeting’ had been held in accordance with Clause 13.3 of the Agreement. Although she considered that the meeting had occurred, the Commissioner went on to consider whether, in the present circumstances there was an obligation to provide an investigation report during or after that meeting.

Noting that there was no inherent requirement to provide the entirety of an investigation report, the Commissioner also considered that, she was not satisfied that Clause 13.3 of the Agreement imposed any further requirement for that report to be provided.

Rather, she cited the observations of the Federal Court in Coutts that “a decision maker need not disclose ‘verbatim’ copies of material” and it may be sufficient if the affected person is informed of “the gravamen or substance of the issue”. In this matter, the teacher had been advised of the findings of the investigation report and that was sufficient to allow her to adequately respond.

Key Lessons

Despite the fact that this case concerned the operation of a provision of a specific enterprise agreement, for investigators the case does highlight:

  • The need to be aware of, and ensure you comply with, the requirements of any applicable policy or agreement. These may differ from, or impose additional requirements to, your usual investigation process;
  • In determining what information to provide the respondent with contradictory evidence for response, it is important to consider the specific circumstances of the case. There is no ‘one size fits all’ rule in making those decisions – what you provide in one investigation may differ from what you provide in another;
  • It is generally not necessary to provide all the evidence collected verbatim, it is sufficient if the respondent is informed about the substance of the issue. In a reportable conduct context, where the evidence of children is collected, it may be necessary to provide additional details about the questions asked and their specific responses, so as to ensure the Respondent has a clear understanding of that evidence.

About Brooke Hall

Brooke Hall has significant experience in the workplace relations area, having worked as a lawyer for 10 years at the now Fair Work Ombudsman. Brooke brings strong communication, investigative and analytical skills in the area of dispute resolution to Worklogic. Her strong client service focus and pragmatic approach ensures clients receive practical solutions to a range of workplace issues.

Worklogic has extensive experience in triaging and resolving workplace complaints.  If you would like advice on a workplace complaint, you can contact Brooke for an obligation-free discussion via email or by calling (03) 9981 6500.

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