Employer justified in withholding investigation information: Judge
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.
Strive for transparency - but don't neglect privacyIn 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:
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.
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