Workplace Investigations Archives - PH Solicitor

Workplace Investigations: Should I hire a lawyer?

jen — Fri, 04 Dec 2020 03:20:37 +0000

Being part of a workplace investigation is stressful on all parties involved, irrespective of the seriousness of allegations.

An employer must understand the legal process associated with a workplace investigation, and its relationship with the Fair Work Act 2009 (Cth) and Fair Work Commission (FWC). Despite many complaints not requiring legal intervention, should the alleged conduct turn into a legal matter after initial findings, it is important employers obtain suitable representation and advice.

Whether to approach a Human Resources consultant or a lawyer depends on the seriousness of allegations and potential consequences which may flow from the outcome of an investigation. Generally, where an employee has engaged in conduct that, if substantiated, constitutes serious misconduct, or where complaints of bullying, harassment or other inappropriate behaviour against another employee are made, an investigation is necessary.

HR consultant or lawyer?

If you are unsure whether your business needs to conduct a workplace investigation into a particular allegation, a consultation with a lawyer is a good place to start for initial advice. A lawyer will be able to point out the requirements of company policies, any applicable enterprise agreement, and the common law with respect to conducting workplace investigations. A lawyer will also be aware of the legal risks and implications which flow from a poorly conducted workplace investigation.

A HR consultant will often help in lessening the tension between parties if they are familiar with those involved, but will likely not be able to approach the investigation with the same detail as a legal representative. A lawyer should be comfortable in providing reasons as to why certain actions should be taken so that the best outcome is achieved.

Although a HR consultant will understand the workplace and its relationships, the detail in which a lawyer can assess all relevant facts, potential witnesses, and conflicting evidence will be crucial to achieving the best result for the accused or complainant, but also the workplace.

The publicity of certain investigations may have a negative impact on business operations, and it is a tough balancing act supporting all parties. Allowing either the complainant or respondent to direct the investigative process is also a fundamental mistake often made, and is a key reason external, impartial legal help should be considered.

Lawyers have a keen awareness of rules of natural justice and procedural fairness which must be applied to all parties to a workplace investigation. If an employee is dismissed as a result of a workplace investigation, that employee may bring an application for unfair dismissal against the employer. If the FWC finds that the dismissed employee was not afforded procedural fairness, the FWC may award compensation to the dismissed employee.

Lawyers also have extensive duties relating to confidentiality as part of their professional obligations. This means they are experienced in handling matters confidentially, discretely and with sensitivity.

There a several steps that need to be taken when commencing a workplace investigation against an employee. First, all relevant details of the allegations in question must be collated alongside all witness accounts. This allows for any conflicting details between parties to be examined and hopefully solved to provide clarity in the investigative process.

Second, all policies relevant to the investigation must be examined and the specific guidelines that may have been breached. Lawyers are experienced at drafting, interpreting and applying workplace policies, contracts of employment, and relevant enterprise agreements.

Third, a full summary of the complaints made and the steps taken to resolve the issue prior to the investigation should be collated. Any workplace complaint should involve proper preparation, investigation, reporting and resolution. Providing unbiased and objective advice on the alleged conduct is also something that a lawyer can provide.

Given many businesses have an internal HR department, there is the potential for opinions and support for certain individuals to influence an outcome. Engaging a lawyer to deal with the investigation externally will ensure that all perceptions of bias are appropriately managed.

Handling serious workplace investigations must be done with care and attention to detail. This is what a lawyer will do best.

PH Solicitor has significant experience and expertise in workplace relations, investigations and employment law. Should you be the subject of, or wish to initiate a workplace investigation against your employee, do not hesitate to contact us. We will provide expert advice, but also reduce the significant stress that may be a consequence of this type of matter.

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Workplace Investigations Procedural Fairness

admin — Mon, 12 Nov 2018 03:10:40 +0000

Gone are the days where an employer can terminate an employee on the spot. With the introduction of the Fair Work legislation in 2010, and the Fair Work Commission which replaced the Australian Industrial Relations Commission, it has become more important for employers to understand the legislative framework to manage their business and employees.

In the last few years, we have seen an increase in the number of workplace investigations conducted. This is one particular aspect of the employment relationship that employers and employees should be aware of.

A workplace investigation can be broadly defined to be an enquiry that is made in relation to an allegation of behavioural misconduct by an employee. It does not have to be the result of a complaint made by another employee. The allegation may be brought to the attention of management and/or human resources without an actual complaint being lodged.

The way in which an investigation is conducted can have an impact on the outcome and any potential claims that an employee may bring against an employer. Whether an investigation is conducted internally by human resources advisers, or externally by an independent investigator, ensuring that the process is procedurally fair to all parties involved, is important. This will decrease the risk of the investigated employee filing a legal claim in relation to how the investigation was conducted.
The process of undertaking an investigation can be summarised as follows:

1. Deciding to investigate;
2. Determining the scope of the investigation;
3. Deciding the type of investigation – internal or external;
4. Identifying witnesses;
5. Notifying parties of investigations and particulars of allegations;
6. Conducting interviews with witnesses;
7. Review of witness evidence and follow up (if required);
8. Investigator prepares report and delivers report to HR/management;
9. Decision made by employer as to outcome. This may include any of the following:
i) Warning;
ii) Further training;
iii) Termination; or
iv) No action taken due to insufficient evidence to support allegations.

Depending on the seriousness of the complaint and/or allegations made, if there are reasonable grounds, the employer may make the decision to suspend an employee pending the outcome of the investigation. If the employee is full-time or part-time, they may need to be paid their full wage during the period of suspension, dependent on any applicable enterprise agreement, contract or Award. Suspension of employment will need to be considered in light of the seriousness of the allegations and considerations made to ensure a safe working environment and duty of care is maintained for all employees involved. Regardless of suspension, the employer must ensure that they complete the investigation as soon as practicable.

Another component of the investigation process is in relation to workplace policies. If an employer has a policy setting out how a workplace investigation will be conducted, there is an assumption that the process will be followed. If the policy forms part of the employment contract and is not followed, it could result in the employer being liable for breach of an employees’ contract of employment (see Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177).

Where allegations against an employee are serious (for instance, where it may lead to the termination of employment, employers must apply the Briginshaw Principle. This principle was established in the case of Briginshaw v Briginshaw (1938) 60 CLR 336, and has been applied by the Fair Work Commission in recent decisions (see, for example, Kumari v Metro Trains Melbourne [2017] FWC 605). In workplace investigations, findings of fact are made on the notion of the balance of probabilities. However, applying Briginshaw, in circumstances where the allegations are of a more serious nature, there must be stronger evidence to support the more serious allegations for an adverse finding to be made, or for allegations to be found proven.

The workplace investigation procedural fairness process may seem complex, but provided there are processes in place to conduct workplace investigations, they can be conducted efficiently and effectively. It is always advised to obtain independent legal advice if you are subject of a workplace investigation, or as an employer, have to conduct a workplace investigation.

We can assist in these matters. Call our office on (03) 9642 0435 for further information.

Disclaimer: This article contains information of a general nature and should not be relied upon or taken to be legal advice. You should speak with a lawyer about your situation before applying any of this information.

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