As the head of your school and responsible for the management of staff, you will inevitably encounter situations of allegations of improper conduct by staff members. In order to effectively address those allegations and discharge your obligations to all staff and students at your school, you may be required to undertake an investigation. Those investigations, however, must be conducted properly or you may be exposed to adverse claims or legislative penalties.
What is a workplace investigation?
A workplace investigation is a formal inquiry into alleged unacceptable conduct or improper behaviour of an employee of an organisation.
The need to perform a workplace investigation
The need to perform a workplace investigation can arise for a variety of reasons. An investigation may be required following:
- an allegation of reportable conduct under the Reportable Conduct Scheme;
- an allegation of bullying by a staff member;
- an issue giving rise to a Clause 13 concern;
- a complaint from an employee about another staff member,
- allegations of misconduct by a third party
- first-hand observation by the employer of the questionable conduct.
Be sure to remember that it is not only formal complaints that require investigation. An employee making an ‘informal’ complaint about the conduct of another staff member should still be investigated if the alleged conduct warrants it. You should contact Brennan Law Partners if you are unsure whether an investigation should be contacted.
Tips for performing a proper workplace investigation
Ensuring that a workplace investigation is conducted correctly is imperative. Failure to do so can result in the decision maker coming to an inaccurate determination which is unfair to the parties involved and exposes the Principal to adverse action. Therefore, before making a determination of an appropriate course of action, the decision maker must have availed themselves of all relevant and probative evidence. A thorough investigation allows for a proper assessment of the allegation or conduct in question and a determination of an appropriate course of action.
All workplace investigations must be conducted in accordance with the principles of natural justice and procedural fairness. Accordingly, when you are charged with the responsibility of conducting a workplace investigation, you should adhere to the following principles:
- The investigation must be prompt;
- The investigation must be sensitive, confidential and conducted with respect;
- The investigation must be unbiased;
- The investigator should be a person with appropriate training, qualifications and/or experience to investigate the allegation and be free from bias or any conflict of interest (real or perceived);
- All relevant information/evidence must be gathered, stored, documented and considered by the decision-maker;
- The relevant employee must be made aware of the allegations against them and given the opportunity to respond;
- The relevant employee must be afforded the opportunity to have support persons present during any meetings or interviews in relation to the incident;
- The relevant employees must be made aware of all findings, outcomes and consequences of the investigation and these must be documented including a record of the reasons for any actions taken; and
- The outcome must be reasonable in light of the evidence gathered during the investigation.
When considering the evidence and reaching conclusions about the allegation, the investigator should apply the ‘balance of probabilities’ standard. That is, when considering whether an allegation or fact is proved or disproved, the investigator should ask themselves whether it is more likely than not that the misconduct has occurred.
Potential consequences of performing an improper workplace investigation
From a risk-perspective, the importance for employers to conduct a thorough and legally sound workplace investigation cannot be understated. If an investigation is performed in an unprofessional or unsatisfactory manner, for instance, by failing to afford procedural fairness to all parties, the consequences can be significant – financially, culturally and reputationally.
Depending on the circumstances, an inadequate workplace investigation can result in employees bringing a legal claim against an employer in one or more of the following areas:
- If the employee has been dismissed from employment or subjected to other forms of adverse disciplinary action following an defective workplace investigation, the employee may seek to bring an unfair dismissal claim and/or claim for breach of the general protections under the Fair Work Act 2009 (Cth). For instance, the Fair Work Commission held in Sheng He v Peacock Brothers & Wilson Lac v Peacock Brothers (2013) FWC 7541 that, despite their being a valid reason for the termination, the dismissal was harsh, unjust and unreasonable on account of procedural flaws in the workplace investigation.
- Under the Occupational Health and Safety Act 2004 (Vic), employers owe employees a non-delegable duty of care to provide and maintain a working environment that is safe and without risks to health. Accordingly, a poorly managed and/or performed workplace investigation that results in injury to employees could render the employer liable to significant financial penalty under the legislation.
- If the organisation has policies and procedures dealing with workplace investigations and these form part of the employment contract, then a common law claim for breach of contract may exist if those workplace policies and procedures are not met.
How can Brennan Law Partners assist?
We provide tailored legal advice in relation to all aspects of a workplace investigation. Our aim is to assist our client during each of the steps required during the investigation process, in order to ensure that they are aware of all the pertinent issues and perform their workplace investigation in an efficient, effective and appropriate manner in accordance with the principles of natural justice.
If you require assistance with a workplace investigation, or have any questions regarding any information in this BLP Brief, we welcome you to contact us at any time.
This is meant as a guide only and should not be taken as legal advice.