In Australia, employers are legally obliged to provide a safe workplace for its workers so it is important to be aware of the impact of failing to investigate workplace incidents properly.
Under our common law provisions, employers may be liable for negligence if they do not take the proper steps to investigate an event in the workplace. While employers may initially think it is expensive, time-consuming and demanding of their resources to look into a workplace matter, the implications of not doing anything may be far greater.
It is important as an investigator to be aware of the various laws that cover workers and these include: unfair dismissal and unlawful termination under the Fair Work Act; the anti-discrimination and sexual harassment laws; workers’ compensation laws. The investigator must be clear that employers are also subject to legal obligations to provide a safe workplace.
A common mistake in a workplace investigation is failing to secure sufficient evidence or conducting a thorough investigation. The impact of this is often only felt in court when unfair dismissal claims cannot be defended.
Another common mistake in a workplace investigations is confirmation bias, where the investigator or manager secures only evidence that inculpates the accused or interprets evidence with a preconceived idea over culpability. As a consequence, various legal bodies could find that the dismissal or disciplinary measures taken were unjust and legal remedies may be recommended. This could include penalties under the Fair Work Act which would examine what actions, if any, the employer took in regard to the original complaint.
Incidents, particularly those resulting in psychological injury are often overlooked and an employer who fails in its duty to its employees to take reasonable care to avoid exposing them to unnecessary risk of injury, including psychological injury can be held liable under negligence or safe work legislation.
Investigators need to be aware that employers creating or ignoring an unsafe working environment are liable for any harm endured by its employees. The employer can also be found vicariously liable for the actions of an employee which is known in the courts as the “reasonable steps” defence.
By taking action and following the principles of procedural fairness investigations can be a great learning tool for organisations, done well they can repair reputations and build stronger teams. Done poorly they can destroy fragile relationships. High quality training is essential for successful outcomes. Some of the things we cover in our courses for HR managers and Investigators is that many cases have already gone before the relevant courts, tribunals and administrative bodies and have found that the employer was liable because they:
- Did not investigate the complaint;
- Did not take the complaint seriously and investigate it;
- The processes taken following the investigation were seriously flawed;
- The investigation was unprofessional and incompetent;
- The investigator was found to be biased.
To find out more about our workplace investigation courses and how it could benefit you, click here for more information.