Engaging a lawyer to plan and execute a workplace investigation might seem like a prudent choice, but the principles of a procedurally fair and naturally just process could get lost in the process.
Sometimes, employers find themselves in circumstances where they need to engage an specialist to conduct a workplace investigation. This may be due to an internal conflict of interest which would compromise the integrity of an investigation, complex subject matter which is outside the area of practice or skillset of internal human resource professionals, or extremely serious allegations such as those which may also be criminal or reportable in nature and therefore subject to enhanced scrutiny.
An employer identifying that they need an external or specialist investigator to ensure a quality investigation is undertaken is a positive step, however the recent The Fair Work Commission (FWC) decision in Roy Smout v BHP Coal Pty Ltd offers a critical warning to employers about engaging legal practitioners to lead and conduct these investigations.
In Roy Smout v BHP Coal Pty Ltd, the conduct of the lawyer during the investigation ultimately exposed BHP to not only the scrutiny of the commission, but also financial penalties. This article will explore why employers should avoid reliance on legal practitioners to plan investigations or conducting interviews, and instead opt for qualified and experienced investigators.
Overview of BHP v Smout
In BHP v Smout, Roy Smout, an employee at BHP Coal, was investigated for workplace misconduct after complaints were made by two female cleaning staff. Mr Patrick Ritchie, Senior Associate of MinterEllison was appointed to conduct the investigation by BHP’s Ethics and Investigations Team. Despite the findings of the investigation substantiating that misconduct had occurred, the investigation process came under serious scrutiny for its lack of procedural fairness. The Fair Work Commission highlighted several deficiencies in how the investigation was conducted, which ultimately exposed the employer to legal, financial and reputational risk. The outcome was a clear reminder about critical foundations of natural justice and procedural fairness and how applying a purist legal framework can compromise these principles.
Fair Work Commissions Criticisms in BHP v Smout
Inadequate show cause period
The applicant submitted that they were provided with the findings of the investigation on the 28th of May and informed that the allegations against him had been substantiated. The applicant was informed that his employment would be terminated unless he could provide the employer with a reason why it shouldn’t be. Just half an hour later, the Applicant received a termination letter, and was not afforded an adequate opportunity to seek legal and industrial advice, or respond in any meaningful manner. This contravened organisational policy, which stated where an allegation of serious misconduct occurs, “the employee is given 7 days to respond to the allegations in the letter and give reasons why their employment should not be terminated before a final decision is made” falling short of the opportunity to respond requirements of the Act.
This lack of engagement directly contravenes principles of natural justice, which dictate that an accused party must have a chance to present their side of the story undermining the integrity of the investigation. An experienced investigator would have ensured that Smout was given adequate time to respond, as well as opportunities to clarify and address any concerns throughout the process. This is crucial for ensuring that the investigation is not only fair but also seen to be fair by all parties involved.
A rushed investigation
Another main criticism was the rushed nature of the investigation overall. On the facts, the investigation was commenced and concluded in less than one week, despite Mr Ritchie testifying that investigations normally take 20 days. The FWC noted this expedited process was driven in part wanting to wrap the investigation up prior to a public holiday, and due to an upcoming sale of the business, and called into question the diligence and robustness of the process overall. This included failing to make any enquiries with or conduct interviews with potential witnesses of the alleged incident. A qualified investigator would have ensured that the process moved at a reasonable pace, giving both sides enough time to present their case and avoiding any perception of bias or haste. Investigators understand the need for thoroughness and are trained to avoid rushing to conclusions.
Leading Questions & Bias
Investigations into workplace misconduct must be conducted with impartiality and objectivity. The Commission noted that the investigation led by Ritchie lacked the foundations of impartiality, focusing more on legal reasoning than on neutral fact-finding. In a damning finding, the Commissioner found that “the investigative rigour that would be expected in an external and independent process was simply non-existent. There were no probing questions…Mr Ritchie agreed that he asked leading questions when trying to corroborate the evidence of the complainants, when he should have asked open questions”. The Commission was also critical of the communication between Mr Ritchie and BHP senior leaders, noting that parties corresponded throughout the investigation process, and, were provided with an opportunity to amend the draft report prior to it being settled.
Whilst lawyers bring significant expertise in legal matters, but they are not always the best choice for conducting workplace investigations. Legal training focuses heavily on argumentation and case construction, which can sometimes conflict with the neutral, fact-finding role required in workplace investigations. Lawyer’s may directly or indirectly seek a legal rationale to meet the client’s industrial objectives at the cost of objectivity and due process. This resulted in a “…significant tilt toward constructing a case against the employee rather than impartially assessing the facts.” Qualified investigators are trained to remain neutral throughout the process, ensuring that the focus is on gathering facts and making decisions based solely on the evidence. This impartiality is essential for avoiding any perception of bias, which could otherwise undermine the investigation’s outcomes.
Consequences of poorly conducted workplace investigations
Even when misconduct is substantiated, a poorly conducted investigation can lead to significant financial repercussions for employers. In BHP v Smout, the flaws in the investigation left BHP open to a potential unfair dismissal claim, despite the misconduct being proven. This case illustrates that even where an employee’s actions warrant dismissal, if procedural fairness is not followed, employers may still face financial impacts. In this case, the Applicant was awarded an additional weeks pay to reflect the loss of procedural fairness in the matter. This amount is no doubt dwarfed by the substantial legal fees that would likely have been incurred by BHP in defending the matter brought against them.
Employers also need to deal with the media fall out from matters heard before the FWC. This can damage an organisational brand’s value externally, and adversely impact perceptions of workplace trust and culture for existing and prospective employees.
By engaging an experienced investigator, employers can reduce the risk of needed to defend an allegation of unfair dismissal. When well-conducted investigation adheres to principles of procedural fairness and natural justice ensures that any decision made, including dismissal, is legally defensible.
Why Wise Workplace Investigators Are a Better Choice
The decision in BHP v Smout serves as a reminder of the importance of conducting workplace investigations with procedural fairness and natural justice at the forefront. While misconduct may be substantiated, a flawed investigation can still leave employers vulnerable to legal claims, including unfair dismissal.
Professional investigators bring a range of skills and experience that lawyers may not have. They are trained to act as neutral fact-finders, ensuring that the investigation process is thorough, fair, and impartial. By contrast, lawyers, while experts in legal matters, may lack the specific investigative and interviewing skills needed to ensure that an investigation meets the rigorous standards required in the workplace context. Ultimately, a professional investigator can save employers significant time, money, and reputational damage in the long run. The key lesson from BHP v Smout is clear: procedural fairness cannot be compromised, and the right investigator can make all the difference.
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