Employers that fail to properly investigate workplace issues and complaints before taking action risk falling foul of the Fair Work Act's procedural fairness requirements, says workplace lawyer Brad Petley.

Where procedural fairness hasn't been afforded to an employee, it's more likely that an industrial tribunal will find they have been unfairly dismissed. The employer could then be ordered to reinstate them, or pay monetary compensation, he says.

According to Petley, solicitor director at Acumen Lawyers, failing to investigate complaints properly is a "recurring theme" in cases brought by workers against their employers. "Industrial tribunals have repeatedly criticised employers over botched investigations or their failure to investigate workplace incidents. Failing to properly investigate workplace incidents is something that, in my view, is never going to go away. Unfortunately, when a report of misconduct is received, many employers act hastily before making sure that the report is substantiated."

Any report of unsatisfactory conduct or performance needs to be investigated, he says, and that means conducting an "information-gathering" exercise, which involves speaking with relevant witnesses to obtain their version of events, then giving the person about whom the concerns are raised an opportunity to respond.

The broadening of the unfair dismissal jurisdiction under the Fair Work Act makes investigations a more pertinent issue than existed under previous workplace relations regimes, Petley adds.

"Some employers became complacent during the Work Choices era, thinking they didn't need to investigate because there wasn't as much scope for an unfair dismissal claim," he says.

Aside from the unfair dismissal issues, now with the Fair Work Act's general protections and adverse action provisions, "the reverse onus of proof is an important factor for employers to bear in mind".

"Basically, if employees bring a claim under the general protections/adverse action provisions, there's a reverse onus of proof on the employer. In order to discharge that onus, the employer must be able to establish that the real reason for their treatment of the employee was not a prohibited reason."

(The penalties for taking adverse action against employees for a prohibited reason are harsher than under the unfair dismissal regime, with the Federal Court or Federal Magistrate's Court able to impose fines of up to $33,000, and make orders for reinstatement or compensation.)

If an employer has conducted a proper investigation, Petley says, it is in a much better position to demonstrate that the reason for its conduct was valid and not a prohibited one."

If it fails to investigate, however, and takes punitive action against an employee (such as dismissal), it leaves itself open to having that action overturned.

"The only real argument that I can see if an employer has failed to investigate in respect of a dismissal issue - so there's an absence or a denial of procedural fairness - is to argue to the industrial commission that the gravity of the conduct was such that it outweighed any unfairness caused by a denial of natural justice or procedural fairness.

"That's a much more difficult task for an employer than simply being able to demonstrate that that procedural fairness was provided.

"The misconduct would need to be most grave in order to outweigh an absence of procedural fairness, and there's no guarantee that an industrial commission would consider a denial of procedural fairness as justified by the circumstances."

Legislation requires offer of support person
A key change in the Fair Work Act affecting how investigations should be conducted is that employees must be given an opportunity to have a support person present, if requested, when they meet to discuss allegations against them, Petley says.

"Prior to the Fair Work Act's introduction, that was a concept that really came through the industrial commissions' case law, but now it's been enshrined in the legislation. That introduces a whole new dynamic to the investigation process," he says.


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