Workplace Investigations & Procedural Fairness

Workplace investigations can be a stressful time for employees and employers alike. It is important to understand both the process and your rights if you find yourself involved in a workplace investigation. As an employer, it is vital to understand the notion of procedural fairness and best practice for conducting workplace investigations in accordance with the Fair Work legislation. Failures in an investigation can be the subject of judicial scrutiny, so employers must understand their duty to investigate as well as support, an employees’ claim.

A number of steps need to be taken when commencing a workplace investigation.  We advise writing a plan for the process to ensure a clear path for the investigation.  This means that if there is a legal challenge to the outcome of the investigation, the plan and the steps that clearly follow that plan demonstrate the fundamental requirements of a fair investigation. 

Generally this will include:

  • obtaining clear details of the allegations being made by the complaining employee(s);
  • providing the allegations in writing to the alleged wrong-doer and giving them a proper opportunity to respond, which may be in writing, in person or both;
  • obtaining names of all relevant witnesses, and ensuring that a balance of witnesses on both sides of the allegations are interviewed;
  • a comprehensive, balanced and well-reasoned report that provides a background, the rules to be applied, the key factual findings, and the conclusions reached.

Any appeal rights of a party to the investigation who is dissatisfied should also be outlined.

As an employee, it can be a stressful time to participate in a workplace investigation. PH Solicitor can provide legal advice and to help guide you through, including what to expect and possible outcomes. We can also assist employers in conducting fair and lawful workplace investigations.