Conduct investigations with procedural fairness
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.
Procedural fairnessThe 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 caseAccording 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.
"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."
You can read more details of the case in Kamira's article on the WISE Workplace Investigations website.
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