10 August, 2023
Procedural Fairness in Workplace Investigations
Blog |
A recent Federal Court ordered penalties against an employer for failing to follow the recommendations of the Fair Work Commission and provide an employee a copy of an investigation report and its annexures, consistent with its enterprise agreement obligations, in the course of putting allegations to the employee.
This EMA Note discusses and provides guidance to employers to apply procedural fairness to their employees in the course of workplace investigations, including what information should (and needs to) be put to employees to respond to any allegations.
In Gulliver v Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane,[1] the Federal Court discusses a recommendation made by the Fair Work Commission in an enterprise agreement dispute, where the Commission recommended an employer provide the employee with a copy of an investigation report (and its annexures) into alleged misconduct so that the employee could respond to a show cause letter in relation to those allegations.
In practice, disputes around what materials should be put to an employee during a disciplinary process are relatively common. Employees and unions often call for all documents, including witness statements and investigation reports. Employers often want to withhold witness statements and investigation reports to protect the confidentiality of witnesses or protect other information that may be in the reports.
This EMA Note provides some guidance and tips on running a workplace investigation, including ways to help ensure that the investigation is procedurally fair.
What is ‘Procedural Fairness’?
There are two key definitions of procedural fairness often used in industrial relations. The first is a phrase commonly used in unfair dismissal proceedings which relates to certain criteria in the Fair Work Act 2009 (Cth) in determining whether a dismissal was harsh, unjust, or unreasonable. In this sense, procedural fairness typically refers to whether an employee is notified of the reason for termination and given a genuine opportunity to respond to that reason.[2]
Outside of unfair dismissal cases, ‘procedural fairness’ is a phrase that can be found in some state legislation, enterprise agreements, contracts of employment, and workplace policies and procedures. In these cases, the meaning of ‘procedural fairness’ must be determined by applying the general rules of interpretation, but often is found to carry with it a broader meaning than is attached to the term when used specifically in relation to unfair dismissal proceedings.
A summary of the concepts of procedural fairness (in its general sense) was set out in ARTBU v Rail Commissioner, including that:[3]
… subject naturally to the particular statutory context, procedural fairness does not require that a decisionmaker adopt an “open file” policy which would have the effect of disclosing every submission or piece of evidence to an affected party … Ultimately, the fundamental issue here is whether the applicant was given a reasonable opportunity to address issues relevant to his interests.
The specific documents that may need to be provided to an employee responding to allegations will therefore vary depending on the circumstances.[4] A failure of an employer to follow its internal processes may not necessarily make a termination of employment unfair in unfair dismissal proceedings;[5] however, it could expose the employer to a claim for a breach of an instrument (if the instrument prescribes a particular requirement) and could also be harsh if an inconsistent procedure was applied in the particular investigation.
Workplace Investigations – Best Practice Approach
There are a few key tips that employers and investigators can follow to assist in running a fair and unbiased workplace investigation. These tips include the following:
- Ensure that the investigator and decision maker have no conflict of interest in the matter being investigated, as this could lead to an actual or perceived bias. If the employer has any concerns about a conflict of interest (or perceived conflict of interest), it should consider engaging an external party to do the investigation.
- Seek all information, including details (such as dates, times, quotes, and witnesses) from the individual making a complaint. Where potential witnesses are identified, those witnesses should also be interviewed to see whether their recollection of events matches or contradicts the original complaint.
- When interviewing a complainant or witnesses, try to use open ended questions (typically starting with ‘who’, ‘what’, ‘how’, and ‘when’) to avoid leading or putting words in the witnesses’ mouth.
- Generally, an accused employee should not be interviewed at this preliminary stage.[6] Instead, the investigator should determine whether there is a reasonable basis to put allegations to that employee. If there is, the employee should be given as much relevant information as they need to genuinely understand and be able to respond to the allegations being put. This will typically include:
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- clear details of the incident or behaviour being alleged and any relevant internal policies/procedures or contract terms that the employee may have breached;
- details about any material being relied upon, so far as is reasonably necessary to provide (for example, witness statements may not be necessary to provide if enough detail is put into the allegation); and
- clarity around the potential consequences if the allegation is substantiated—do not overstate this.
- If there is any documented or similar evidence (for example, relevant emails, policies/procedures, or CCTV footage) depicting the behaviour, the employee should be either provided with this evidence or be given a reasonable opportunity to view the evidence.
- The employee should be given a reasonable amount of time to be able to consider the allegations prior to being placed in a position to respond. The amount of time necessary may vary depending on the specific allegations.
Following these steps should help ensure that an employee accused of misconduct is provided with a fair process and has a reasonable and genuine opportunity to respond to allegations.
If you need assistance with an investigation—whether it is running the investigation or assistance in any particular stage of the investigation, please do not hesitate to contact EMA Consulting. Our consultants are experienced investigators and are licenced to undertake workplace investigations in South Australia.
[1] [2023] FCA 823.
[2] Fair Work Act 2009 (Cth) ss 387(b)–(c).
[3] [2019] FWC 3944 [123], citing Coutts v Close [2014] FCA 19 [114].
[4] For example, in Tucker v State of Victoria [2021] VSCA 120, an employee was not afforded procedural fairness under an enterprise agreement when given a heavily redacted copy of an investigation report into a claim of harassment. Redactions included certain witness evidence and the investigator’s findings. By redacting this information, the Victorian Court of Appeal found that the employee was denied the employee to make submissions to the employer challenging the evidence and conclusions in the investigation before the employer made its decision.
[5] See eg Central Queensland Services Pty Ltd v Odgers [2020] FWCFB 304 [33]–[44].
[6] If there is insufficient information to establish a reasonable basis to put allegations, an accused person can instead be interviewed like other witnesses (following tip 3 in our best practice approach guidelines).
Require further information/assistance?
If you require further information or advice, please contact your Consultant.
EMA Consulting is not a law firm and therefore does not provide legal advice or services. The information contained within this document and associated material is general in nature and should not be relied upon. If you require specific advice on a particular matter, we recommend that you contact EMA Consulting on 08 8203 1700. Subject to the matter at hand, your EMAC Consultant may recommend that you obtain formal legal advice. If formal legal advice is required, upon your written instruction EMAC will brief your matter to a legal practitioner for this purpose. The contents of this document and associated materials do not represent legal advice.
