Workplace investigations: why you need to get them right

Business owners occasionally need to sack employees who have committed workplace misconduct because of the damage they can do to staff morale and the bottom line.  When this occurs, the last thing an employer wants is an order for reinstatement or compensation because the Fair Work Commission deems the dismissal ‘unfair’.  This can undermine a business owner’s authority across their entire workforce.

So, how to go about doing it right?  For a dismissal to be fair, the Commission requires employers to have:

  1. A valid reason; and
  2. A fair investigation process.

A valid reason

Gather evidence.  If the evidence proves the employee has committed misconduct, then you have a valid reason.

In terms of evidence, it’s important that you:

  1. Identify which contractual terms or policy clauses the employee has breached, and how.  It’s important to clearly define the misconduct.
  2. Appreciate the vital difference between an assertion that the employee has committed misconduct and all-important evidence; evidence includes witness statements, documents, video footage and the like.  A Fair Work Commissioner will make up their own mind as to whether there is a valid reason for dismissal.

A fair investigation process

An employee is entitled to know the allegations against them and to receive an opportunity to respond to them.

Below are some tips to help you conduct a fair investigation.

  1. The purpose of an investigation is to gather evidence, not to distribute it.  Sharing too much information about the allegations to the suspected wrongdoer and other witnesses can undermine the integrity of the investigation and provide an opportunity to create plausible excuses for misconduct.  Direct those involved not to discuss the matter;
  2. Get the investigation underway as soon as possible so that witnesses do not forget important details;
  3. Ask open-ended questions. Closed questions or leading statements can put ideas into witness’ heads; 
  4. Gather information about the context of the alleged misconduct, not just the misconduct itself.  For example, if the offence is regarding unacceptable language in the workplace, then gather evidence to show why swearing is a sackable offence in your organisation.  Have staff received training on appropriate workplace behaviour?  Did the alleged wrongdoer know their behaviour was unacceptable?;
  5. Ask “who, what, when, where?” Don’t paraphrase.  Use quotation marks when recording interviews.  Record the date that relevant events occurred, as well as the date the interview occurred.  Record the names, positions and contact details of those involved in the investigation;
  6. Allow the alleged wrongdoer time to arrange a support person, and the opportunity to genuinely influence the investigation and to challenge your preliminary conclusions;
  7. Appoint an independent investigator; not someone who has been working directly with the alleged wrongdoer or someone who could benefit from an adverse finding.

Protect your business

  1. If you anticipate that the investigation will result in some valid criticism of your business, then you should engage lawyers to protect the investigation report under legal professional privilege. 
  2. If the allegation is so serious that termination of employment may result, invest skill and time in the investigation.  Undertaking an investigation that is thorough enough to withstand the scrutiny of the Fair Work Commission would not often be achieved in much less than a week.  Complex investigations can take more than a month. The ability to gather quality evidence is a rare skill so engage an external investigator if you do not have the appropriate experience in-house. 

Getting the investigation right before effecting a dismissal is much more cost-effective than defending an unfair dismissal claim. For assistance with all aspects of workplace investigations, call a member of our employment law team.  

This article was written by Senior Associate, Thea Birss

Practice Area: Employment

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