The Federal Court has "set in stone" what constitutes procedural fairness, after finding a workplace investigation was flawed and lacking natural justice, according to Wise Workplace Investigations principal, Jo Kamira.
The judgment "really shows that [investigation] processes and procedures need to be followed to the nth degree, because you don't want to leave loopholes, and you don't want to end up doing an investigation again that was done poorly in the first place", she told a seminar in Sydney last week.
The case involved a senior employee of the Therapeutic Goods Authority (TGA), who allegedly behaved inappropriately towards a female colleague during an interstate dinner with a work team. Specifically, he was accused of rubbing her hand and leg, making inappropriate gestures and sending inappropriate and unsolicited text messages.
After a male colleague reported the alleged misconduct, and the female colleague subsequently made a written complaint, TGA appointed an external investigator. The investigator's terms of reference required him to conduct the investigation in a manner consistent with the Agency's procedures for determining breaches of the code of conduct, and ensure that procedural fairness applied and that natural justice was provided to the employee.
The investigator ultimately found the senior employee had breached the code, and TGA demoted him from the role of director to associate director. The employee then claimed the investigation was procedurally flawed and he was not afforded procedural fairness.
The Federal Court found the Agency's investigation procedures weren't strictly followed because the TGA failed to disclose to the employee the details of his suspected breaches of the Code. These were included in the investigator's terms of reference, but supplied by the investigator to the employee in a varied form.
Further, the employee wasn't given the opportunity to make an oral statement after providing his written statement. He said he would prefer to respond initially with a written statement, but after receiving a further letter containing more detailed particulars of the allegations he was denied the opportunity to respond on tape.
Procedural fairness
The employee made specific claims of procedural unfairness that the Court addressed separately.
It found the investigator wrongly failed to disclose information about additional allegations made by the female colleague, who further alleged during the investigation process that the senior employee had, in the past, looked at her "in a sleazy manner" and looked at her breasts.
The Court held that the test to be applied in determining whether the employee should have an opportunity to deal with additional adverse information was whether that information was credible, relevant and significant to the investigator's determination, such that there was a real risk of prejudice arising from the investigator's possession of that information.
The Court said the further allegations should have been disclosed to the employee to allow him to respond, because the information could have prejudiced the investigator's findings, albeit subconsciously.
The senior employee also alleged that the investigator should have inquired into his prior good character, and into the unreliability of his colleagues' evidence (due to their state of intoxication at the time), and their feelings of ill will towards him.
The Court, however, found investigators do not have a general obligation to make inquiries or make out a case for an employee under investigation. It was up to the employee to provide information to support these matters, it said.
Finally, the senior employee claimed the investigator did not conduct the investigation with an open mind and without being open to persuasion. The Court agreed, noting that the investigator used the word 'debriefing' to describe the purpose of the dinner, when this word had not been used by any witness, and that he made remarks such as 'Yes, I can understand that', 'I'm not doubting that' and '...yes, I agree' during interviews with witnesses.
The Court said that even if the evidence wasn't strong enough to establish that the investigator was actually biased, it was sufficient to "draw a conclusion of apprehended bias sufficient to constitute a denial of natural justice".
Lessons from the case
According to Kamiro, there are "many lessons" to be learned from the case, "particularly in relation to properly organising and conducting misconduct investigations and determinations".
She told the briefing that, "we all think we know what procedural fairness and natural justice is", but the case clearly sets out "what we have to do when we're doing investigations".
The area is fraught with risk because the Australian Public Service - and most private sector organisations - require investigations to be procedurally fair, yet conducted "with as little formality as possible".
"The thing is, if you start doing things informally... you're on a one-way path straight to the commission. Process and policy has to be followed so you don't end up there," she says.
Kamira advises:
Draft an investigation plan - Each public service department has processes in place and, "it's now been put into case law that those policies and procedures must be followed".
An investigation plan, she says, is one of the best ways to ensure that investigators are following the procedures.
Gather all material that's relevant to the investigation procedures - "make sure your investigation procedures have the latest up-to-date policies. Keep sending them out. Put them in the terms of reference."
Make a checklist of all the mandatory procedures so that each step of the process is followed, every time.
Have the capacity to broaden the investigation. When new allegations arise make sure the investigator is able to say, "there's more stuff here, we need to go through the process again, so we don't breach procedural fairness and natural justice".
Let the person under investigation know what they've been accused of. "That doesn't mean giving them all of the statements that you've got or giving them the transcripts [of interviews]. It means providing them with enough information that they know exactly what they've been accused of and what they have to answer."
The information should be provided in the allegation letter or notification letter, she says.
Approach the investigation with an open mind. "It's really important that you be independent and unbiased, and apply all those procedures.
Choose your language carefully. This will be "a very personal thing", Kamira says, but might mean not giving positive feedback when interviewing witnesses. "Make sure your language is not biased when you get your transcripts back."
Base findings on logical proof. An investigator should be able to trace their findings back through every step in the investigation and be able to say, "this is where I made that decision from; this is the evidence it hangs on".
"Without appropriate guidelines, and without a plan and without a checklist, there's this risk that an informal investigation can be a little too informal and that it will unwittingly fail to adhere to the notions of procedural fairness," Kamira says.
"It leaves the misconduct determination and ultimate sanction open to legal challenge in the court, and in the worst case scenario, if an investigation is not procedurally fair and the employee mounts a successful legal challenge, not only could you end up paying the court costs and the relevant monies to the employee, but you could end up having to pay for another investigation and going through the whole process again."
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