The Need For procedural Fairness
The need for procedural fairness as part of a workplace investigation are a necessary process for employers in order to investigate complaints or allegations against employees in the workplace. Conducting a proper workplace investigation shows your employees that you respect them and their rights, leading to a better organizational workplace culture culture in which employees are committed and motivated to work for the good of the organization. But how should an employer conduct a workplace investigation?
Although employers are obligated to investigate matters before reaching a conclusion or substantiating any allegations, there is no explicit rulebook that sets out the way in which investigations should be conducted. In turn, employers may feel a level of uncertainty or confusion and this may create potential room for error in conducting an acceptable workplace investigation.
How to Have a Successful Workplace Investigation (with procedural fairness)
The purpose of a workplace investigation is to get to the bottom of what happened, to determine whether the alleged events occurred and if they did, take appropriate disciplinary action against the employee/s involved.
During the workplace investigation, an employer may be required to gather evidence, such as statements or records, in relation to the allegation or issue raised. This evidence is then used to determine whether there is a sufficient amount of evidence to prove allegations. Workplace investigations often reflect strong emotions and can be quite confronting for both employees and employers. Consequently, it is important to make an objective assessment of the matters or facts presented.
Incidents that may be minor in nature can often be dealt with internally with a minimum of fuss. Mediation, informal counselling, employee assistance or a workplace review are all possible options to remedy a minor situation. However, workplace issues such as allegations of bullying, discrimination or sexual harassment, embezzlement, fraud or misconduct, amongst others, may need a thorough workplace investigation to be conducted. In some instances, employer’s may want to engage an external independent investigator for more serious allegations.
Employer should particularize the alleged misconduct
When making allegations of misconduct against an employee, the employer should particularize the alleged misconduct in as much detail as possible. This is to ensure that the employee is made aware of all necessary details surrounding the allegations and which enables them to respond fully. If the allegations are vague or ambiguous, this may the workplace investigation procedurally deficient or unfair. A flawed investigative procedure has been held to render a dismissal unfair.
Workplace Investigation via Email Renders Dismissal Unfair
In Roger Woods v LifeFlight Australia Limited, the Fair work Commission (FWC) was critical of an employer’s workplace investigation conducted and carried out via email. In this case, the employee was terminated on the basis of misconduct for failing to comply with a lawful and reasonable direction. In May 2020, the employee was moved to working WP2. In October 2020, the employee gave three months’ notice requesting that he be moved back to working WP1 as he had serious safety concerns about his fatigue.
The Employer wrote to the employee two months later informing him that it had an intention of issuing him a JobKeeper enabling direction (JED) under the Fair Work Act 2009 (Cth) (FW Act). Under this intended JED, the Employer ordered that the employee stay on the WP2 roster due to operational requirements in light of the COVID-19 pandemic
The employer responded with first and final warning
The employee responded to the Employer in a series of emails, stating that he did not accept the JED as a lawful workplace direction and refused to continue to work on WP2. The Employer responded to the employee giving him a first and final warning, citing his emails as “offensive” and “disrespectful”. The employee responded to the Employer in a series of emails, stating that he did not accept the JED as a lawful workplace direction and refused to continue to work on WP2.
The Employer extracted 22 examples from the employee’s emails which it considered to be contrary to its Code of Conduct (the Code) and Discrimination, Sexual Harassment and Bullying Policy (the Policy). The employee responded to the first and final warning via email, stating that the Employer had no grounds for issuing him a warning and if it was to go before the FWC, it would be “laughed out of chambers”.
Failing to comply with a reasonable and lawful direction
The Employer considered the tone and language of the employee to again be unacceptable and responded asking him to show cause as to why his employment should not be terminated. The Employer considered the employee’s response and ultimately decided to dismiss him for failing to comply with a reasonable and lawful direction and breaching its Code and Policy. The employee subsequently made an application of unfair dismissal, claiming that the Employer deeming his tone and language as misconduct warranting dismissal was excessive, unreasonable and disproportionately harsh and unjust.
Commissioner Riordan, of the Fair Work Commission, found that the employer erred in issuing a first and final warning without any discussion, labelling it “premature” as the behaviour could not be described as either repeated or unreasonable. Commissioner Riordan also held that the employer’s failure to meet with the employee face-to-face in order to discuss these issues, was unsatisfactory given it was not unreasonable. The Fair Work Commission found the disciplinary process to be procedurally unfair.
How Much Evidence is Needed for a Workplace Investigation?
The High Court in Briginshaw v Briginshaw, gave guidance on how it is that a court may find that something happened. It was held that the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
This has led industrial tribunals to make statements such as “the allegation [must be] established with … comfortable satisfaction”. It is also said that Briginshaw “require[s] the respondent to make out its case in a convincing way”. Consequently, if an employer is considering taking disciplinary action due to an employee’s misconduct, it is critical that an employer makes a decision based on evidence of actual wrongdoing as opposed to a mere suspicion of wrongdoing.
Mere suspicion of misconduct rather than any actual misconduct, rendered the dismissal ultimately unfair
In Gates v Blugibbon Pty Ltd, the Fair Work Commission held that the dismissal of an employee on the mere suspicion of misconduct rather than any actual misconduct, rendered the dismissal ultimately unfair. In this case, the employer formed the view that the employee was planning on leaving his employment and that he was going to take the Employer’s confidential information. Acting on this view, the Employer took a number of steps to protect its confidential information, namely requesting that the employee return his work mobile and changing the password to his email account, whilst the employee was on sick leave.
In late April 2021, the Employer received a report of abnormal download activities on the employee’s laptop. Given the employee was meant to still be on sick leave, the Employer assumed that he was using his laptop to copy its confidential information. The Employer confronted the employee about its findings, to which the employee denied accessing the laptop while on leave.
Employee called into a meeting
The employer subsequently called the employee in for a meeting, as part of their “workplace investigation”, and instead of putting the allegations to him, dismissed the employee for “serious misconduct” as a result of his dishonesty and unauthorized use of confidential information.
Deputy President Easton, of the Fair Work Commission, held that there was no evidence, or even a suggestion that the employee had engaged in any of the suspected misconduct. Further, the employer was criticized for not making enquiries that were reasonably open for the employer to make, before effecting the dismissal. Consequently, the employer’s investigative procedure was labelled as an “under-investigated suspicion” in which there was no valid reason for dismissal.
Key Takeaways for Employers and Employees regarding Procedural Fairness
In conducting a successful workplace investigation, it is clear that the method in which such a procedure is carried out, is of critical importance. A lack of consultation throughout the disciplinary process renders the process undertaken by the employer as invalid. It is procedurally unfair for there to be absolutely no verbal communication between an employer and an employee in such a situation where a workplace investigation is taking place. While meeting face-to-face may not be realistic during the current COVID-19 pandemic, employers should still arrange means in which there can be verbal communication, for example, via telephone or other audio-visual means.
Every successful relationship has good communication, conversely, poor communication between the parties invariably leads to a detrimental and deficient process. Similarly, investigations are an important tool available to employer when it is alleged that an employee has engaged in misconduct. If an employer is considering taking disciplinary action due to an employee’s misconduct, it is critical that an employer makes a decision based on wrongdoing as opposed to a mere suspicion of wrongdoing.
Conclusion, to Procedural Fairness in a Workplace Investigation
“Procedural Fairness in a Workplace Investigation”, I hope this article clarified some issues for you. We are A Whole New Approach, we “live and breath” workplace stuff, we are not employment lawyers but the nations leading workplace advisors. Got a question?, want to know something?, make the call, send the email. All Fair work Australia and Fair work Commission matters, unfair dismissals, general protections, redundancy issues., workplace investigations, nothing is a trouble for us.
Call 1800 333 666, advice is free. We work in all states, Vic, NSW, Qld, SA, WA, Tas.
An article that may assist you in workplace investigations, click here
Workplace investigation that leads to unfair dismissal, click here
  FWC 5464.
 (1938) 60 CLR 33.
 Paul Barnett v Qantas Airways Limited  AIRC 698.
 Budlong v NCR Australia  NSWIRComm 288.
  FWC 6143.
One of the nations leading workplace advisors, representatives and commentators. Gary has represented some 12,000 clients over some 20 plus years, published some 300 plus articles. He is passionate about employees rights and the test of fairness in the workplace. Have a problem, concern, wants to contribute to the debate or research, call him directly.