Bullying

Procedural fairness and workplace investigations into employee misconduct

By WISE Legal Counsel

In this article WISE discusses the importance of applying principles of procedural fairness during workplace investigations into employee misconduct so that subsequent decisions will not be de-railed.

It has become standard best practice in Australian workplaces to follow principles of procedural fairness when conducting investigations into allegations of employee misconduct. This practice has developed in response to the adverse consequences which can flow if investigators do not conduct investigations fairly. Employers do not decide lightly to dismiss an employee for misconduct. So there will be even more upheaval if the employee seeks to challenge this decision in the courts and have it overturned on the basis that the investigation process was flawed. At the very least the employer will face the frustration and costs of dealing with the court processes (both financially but also in terms of management time and loss of productivity). The employer is also likely to attract negative publicity, suffer adverse reputational effects and employee morale is likely to plummet. This article takes a closer look at the principles of procedural fairness. It explains these principles and provides some practical tips to ensure that workplace investigations are conducted fairly.

What is meant by procedural fairness applies in situations where a decision is to be taken which could have a detrimental effect on the rights, interests or legitimate expectations of a person. Historically this concept applied to formal legal decision making processes. These principles also apply to administrative decision making processes by government officials and agencies. More recently, principles of procedural fairness have been applied to workplace investigations into employee misconduct, particularly where a likely outcome of the processes is dismissal or demotion of the wrong-doer When an employee is charged with having transgressed a workplace rule, there are three underlying rights to which that employee is entitled in the context of any further employer action in relation to the charges. These are based on the notion of giving the employee notice of the allegations on which management decisions might be based. In most cases this will require the employer to set out in writing the detailed allegations and the proposed penalty so that the employee knows sufficiently what is being said against him or her and has an adequate opportunity to deal with the allegations. The employee must have the opportunity to be heard, that is, to respond to the allegations. This may include giving the employee the opportunity to make their own submissions and present their own material and unbiased, neutral decision making, meaning that the ultimate decision makers should be impartial.

Practical tips to ensure procedural fairness WorkCover NSW (2008) lists some useful practical tips for responding to bullying complaints in the workplace. Many of these tips apply generally to workplace investigations, including:
  • Act promptly and communicate transparently in relation to all matters concerning the investigation and subsequent decisions.
  • All parties (witnesses, the alleged wrong doer and the complainants) should be informed of how long the process will take and what they can expect to happen during and at the end of the process. If delays occur, all those involved should be informed of the reasons for the delay and when the process is expected to recommence. Where an alleged wrong doer chooses to respond to allegations in person, it is not unreasonable for them to be accompanied by a person of their choice (such as a union representative, interpreter or friend) who can either present his or her defence or simply be present as an act as support. (see also Van Gramberg, 2001)
  • The person in charge of the investigation and the ultimate decision maker should have had no direct involvement in the alleged incident.
  • The more serious the allegations (and the possible consequences), the more important it is that the investigation is conducted by an independent person who does not directly supervise the alleged wrong doer.
  • If there is no suitably qualified or independent persons available to conduct the investigation within the workplace, the employer should appoint an external investigator that all parties are comfortable that the person in charge of the investigation and subsequent decision-making is impartial and unbiased. This involves ensuring that this person (or persons) has no conflict of interest, that is, their private interests should not conflict with the investigation outcomes recognising the need to train supervisors and managers responsible for conducting workplace investigations and the subsequent decision making processes to ensure that they understand the concepts of fairness and ethics in this context (Van Gramberg, 2001).

    Confidentiality

    Management and those responsible for the investigation should use their best efforts to ensure that all investigation details remain confidential. Information regarding the investigation should only be communicated on a need-to-know basis to avoid potential defamation actions from releasing information damaging to the reputation of the alleged wrong-doer.

    Record

    All meetings and interviews should be documented including details of who attended and agreed outcomes (even where no formal investigation is undertaken).

    Evidence

    All relevant evidence should be obtained and carefully considered. It is not sufficient to simply rely on that evidence which best fits the circumstances and provides the desired outcome. As a matter of fairness, witnesses and the alleged wrong-doer should have an opportunity to review their statement before signing and should be provided with a copy.

    Documented outcomes

    The investigation findings and recommendations should be documented in a written report, and the decision of the final decision-maker noted on the personnel files of the complainant and employee under investigation (Aequus Partners, 2008).

    Case studies

    There are numerous cases which highlight the importance of applying the principles of procedural fairness to workplace investigations, particularly where the outcome of the investigation is either demotion or termination of employment. The recent case of Police Association of New South Wales (on behalf of Kim Gilmour) and Commissioner of Police NSWIRComm 51 is a classic example of how not to conduct a workplace investigation.

    The NSW Industrial Relations Commission found that the investigation process was so infected by procedural deficiencies as to contaminate the process. Some of the many investigation flaws found by the Commission included:
    • the relevant decision-maker admitted that she:
      (a) had a pre-determined view of the outcome of the investigation prior to its completion and
      (b) took irrelevant matters into consideration in making her decision,
    •  the initial investigator had been involved in one of the alleged incidents and had previous disagreements with the employee under investigation,
    • two witnesses present at the alleged incidents were not interviewed,
    •  there were unreasonable delays in the process,
    •  the employee under investigation was not given details of the allegations against him until he was interviewed many months after the investigation process commenced.

      By way of contrast, the recent case of Rogers v Millennium Inorganic Chemicals Limited Anor [2009] FMCA 1 (9 January 2009) suggests that employers will not always be required to conduct perfect investigations (for example, to the standard of a police investigation).

      In this case the employee under investigation had been dismissed and sued the employer for unlawful termination, claiming that it had breached implied terms of mutual trust and confidence in his employment contract by failing to:
      (a) conduct a full investigation of the alleged matters; and
      (b) providing names of interviewed witnesses.
      The court rejected the employee’s claim because he had point blank denied being present when the alleged incidents took place. Accordingly it was irrelevant if he knew the names of those people who had given evidence.

      It is likely that this decision will be restricted to its facts in the future – that is, to cases where the employee under investigation totally denies all the allegations. Usually, a failure to provide names of those making the allegations would breach rules of procedural fairness, providing grounds for the employee to legally challenge subsequent dismissal decisions. Notwithstanding this case, it is prudent investigation practice to provide all relevant names as part of the process of giving proper details of the allegations against the employee.

      References
      Aequus Partners' Diversity and Flexibility e-newsletter, June 2008
      Van Gramberg, B., (2001), Workplace Justice and the Design of Dispute Resolution Clauses; Victoria School of Management Working Paper Series 8/2008
Comments
Anonymous commented on 03-May-2014 10:40 AM
"Thank you so much for this article. I am currently involved in a workplace dispute where claims have been made against me.

The process being undertaken I do not believe is fair and this article has given me some useful insights into how things may or may not be considered fair. It has prompted me to take the matter further.

Thanks so much once again
Tori"
Anonymous commented on 27-Jan-2015 05:46 PM
"These advise has given me an invaluable piece of legal knowledge as I am going through a dispute of unfair dismissal at workplace.

Many Thanks and Kind regards
Jack Kumar"
Anonymous commented on 17-Apr-2016 06:51 AM
"Thank you for this article. I have been trying to find out anywhere what is advised, and also what is the legal position if any, on communicating to the wider staff body of a smallish business anything at the conclusion of an investigation. Due to the public nature of the incident that led to the investigation many staff are aware somethign is gogin on, and those asking have been simply told a formal grievance process is underway. As one issue we have identified is that in the past under previous management complaints raised have been brushed off, so we have the issue of wanting to be transparent to all staff as much as possible. What I have read seem to be clear on confidentiality of the content of investigation as far as anyeon outside the involved parties is concerned, but also stress the importance of transparency in some cases with all staff also.. Is there anywhere you can poitn me for guidance on this?"
Anonymous commented on 16-Sep-2017 06:42 AM
"My Wife is a Bank Manager. We recently borrowed money from our friend who happens to be a Colleague. Her Dad has a shared account with the friend and he gave the go ahead to loan us the money. This was a temp loan and will be paid in 12 Weeks. Next thing i know there are Investigators at the Branch who interrogated all 5 girls without breaks for 7 hours. We felt like we were in a POW camp. During the Interrogation he waved a fike in front of my face numerous times and ihave never felt so humiliated along with my Colleagues. I have done nothing wrong and have been made to feel like a Convict. Are they allowed to Interrogate us for so long? We have gone to a Solicitor. There were also delays in the Investigation of which wd were not informed. Kind Regards Kevin John"
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