Gone are the days where an employer can terminate an employee on the spot. With the introduction of the Fair Work legislation in 2010, and the Fair Work Commission which replaced the Australian Industrial Relations Commission, it has become more important for employers to understand the legislative framework to manage their business and employees.
In the last few years, we have seen an increase in the number of workplace investigations conducted. This is one particular aspect of the employment relationship that employers and employees should be aware of.
A workplace investigation can be broadly defined to be an enquiry that is made in relation to an allegation of behavioural misconduct by an employee. It does not have to be the result of a complaint made by another employee. The allegation may be brought to the attention of management and/or human resources without an actual complaint being lodged.
The way in which an investigation is conducted can have an impact on the outcome and any potential claims that an employee may bring against an employer. Whether an investigation is conducted internally by human resources advisers, or externally by an independent investigator, ensuring that the process is procedurally fair to all parties involved, is important. This will decrease the risk of the investigated employee filing a legal claim in relation to how the investigation was conducted.
The process of undertaking an investigation can be summarised as follows:
1. Deciding to investigate;
2. Determining the scope of the investigation;
3. Deciding the type of investigation – internal or external;
4. Identifying witnesses;
5. Notifying parties of investigations and particulars of allegations;
6. Conducting interviews with witnesses;
7. Review of witness evidence and follow up (if required);
8. Investigator prepares report and delivers report to HR/management;
9. Decision made by employer as to outcome. This may include any of the following:
i) Warning;
ii) Further training;
iii) Termination; or
iv) No action taken due to insufficient evidence to support allegations.
Depending on the seriousness of the complaint and/or allegations made, if there are reasonable grounds, the employer may make the decision to suspend an employee pending the outcome of the investigation. If the employee is full-time or part-time, they may need to be paid their full wage during the period of suspension, dependent on any applicable enterprise agreement, contract or Award. Suspension of employment will need to be considered in light of the seriousness of the allegations and considerations made to ensure a safe working environment and duty of care is maintained for all employees involved. Regardless of suspension, the employer must ensure that they complete the investigation as soon as practicable.
Another component of the investigation process is in relation to workplace policies. If an employer has a policy setting out how a workplace investigation will be conducted, there is an assumption that the process will be followed. If the policy forms part of the employment contract and is not followed, it could result in the employer being liable for breach of an employees’ contract of employment (see Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177).
Where allegations against an employee are serious (for instance, where it may lead to the termination of employment, employers must apply the Briginshaw Principle. This principle was established in the case of Briginshaw v Briginshaw (1938) 60 CLR 336, and has been applied by the Fair Work Commission in recent decisions (see, for example, Kumari v Metro Trains Melbourne [2017] FWC 605). In workplace investigations, findings of fact are made on the notion of the balance of probabilities. However, applying Briginshaw, in circumstances where the allegations are of a more serious nature, there must be stronger evidence to support the more serious allegations for an adverse finding to be made, or for allegations to be found proven.
The workplace investigation procedural fairness process may seem complex, but provided there are processes in place to conduct workplace investigations, they can be conducted efficiently and effectively. It is always advised to obtain independent legal advice if you are subject of a workplace investigation, or as an employer, have to conduct a workplace investigation.
We can assist in these matters. Call our office on (03) 9642 0435 for further information.
Disclaimer: This article contains information of a general nature and should not be relied upon or taken to be legal advice. You should speak with a lawyer about your situation before applying any of this information.
