Employer justified in withholding investigation information: Judge

17 June 2010 8:21am

A worker has been denied compensation for a psychological injury after he failed to convince the Queensland Industrial Relations Court that a workplace investigation was not conducted in a "reasonable" way.

The worker criticised his HR manager for refusing to show him a letter of complaint, written by his supervisor, about his behaviour. He also condemned a director's decision to withhold the contents of an investigative report.

The HR officer said that while she denied the worker access to his supervisor's letter of complaint, she did give him a dot-point version.

And the director said he withheld the (independent) investigator's final report because he wanted to avoid yet another "bout" between the worker and his colleague.

The Judge found the director was "committed" to resolving the conflict and said the conclusion that there was little point in disclosing every detail of the report - which vindicated the worker - was "open" to him.

He also found there was "nothing unreasonable" in the HR officer's decision to withhold the supervisor's letter of complaint. She was required to consider the interests of both parties, and the information she did give the worker was "sufficient".

"In substance, [the worker] had the 'pleadings' but did not have his 'adversary's brief'. It seems to me that he was given sufficient information," the Judge said, dismissing the appeal.

Strive for transparency - but don't neglect privacy

In their book Procedural Fairness: A practical Guide for Workplace Investigators, Jo Kamira and Alison Page of Wise Workplace Investigations stress the importance of conducting investigations fairly.

If an investigation lacks procedural fairness, the decisions arising from it "are open to legal challenge by the employee, and may be overturned if the court determines the investigation process was flawed", the authors say.

"As such, it is important that the employee is notified in writing about the allegations."

Once an investigator has been appointed, he or she usually sends a "formal allegation letter" to the worker, the authors say. This letter should provide details of the allegations so that the worker can "adequately and fully" respond.

Such details should include:

the formal allegations of inappropriate behaviour, including particulars of the alleged conduct;

specific alleged breaches of the code of conduct;

potential sanctions that may be imposed;

information about how the investigation will proceed; and

information about the employee's rights during the investigation.

The rights of the worker include the opportunity to bring a support person when they are interviewed, and the right to make a written submission followed by an oral statement.

A worker under investigation should also be notified in writing of any additional allegations that might arise during the investigation, say the authors. "Otherwise there is a real risk that the investigator will be prejudiced by this new material, albeit subconsciously, and the decision-making process will be tainted with unfairness."

However, "the investigator is not obliged to give the employee access to all materials arising from the investigation, such as statements and transcripts".

"These materials usually contain confidential information, some of which may not be relevant to the employee's allegations." Releasing this information "in its entirety" could result in a breach of common law confidentiality obligations and in some cases, a breach of the Commonwealth Privacy Act.

It could also have "a compounding effect on already damaged workplace relationships, thereby fuelling a toxic work environment", the authors say.

It is usually a matter for the employer to consider and assess the contents of the investigator's report before passing on material to the employee, they say.

HR Daily has previously hosted a webinar on effective workplace investigations. Click here to watch it (HRD Plus Gold subscription required), or here to order a copy from our online store.

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How to investigate a workplace incident
Conduct investigations with procedural fairness

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