Independent Workplace Investigations Make Practical Sense
Recently I was appointed to investigate allegations made by an accounts clerk that she was being bullied by her immediate supervisor. The allegations happened to coincide with performance management measures following some admitted clerical errors. Rather than run the risk of an adverse action claim (“You terminated my employment because I made a complaint”) the client appointed me to conduct an independent investigation.
Whilst the allegations were not factually false, the real question was whether the performance management of the supervisor was reasonable management action conducted in a reasonable manner (p52 Anti-Bullying Benchbook). Ultimately the employer accepted my findings that the supervisor had acted reasonably and the manager of the team was able to terminate the employment of the accounts clerk without any real risk that the employee would allege that the termination of her employment was because she had made a complaint.
The unfair dismissal laws require employers to take reasonable steps to provide an employee with an opportunity to respond (p115 Unfair Dismissal Benchbook) to allegations of misconduct or poor performance . Whilst this does not always necessitate a workplace investigation, employees should be given a fair chance to respond to properly formulated allegations prior to being required to explain their conduct.
Where the allegations may have serious consequences for the employee an independent external investigation is usually the most effective way of ensuring that there is no perceived failure to provide such an opportunity, thereby lessening the chances of a successful unfair dismissal application being made.
If an internal investigation is to be conducted, it is essential that the investigators are independent and the investigation is conducted with procedural fairness.
In a Fair Work Commission unfair dismissal decision in 2014 (Fitzpatrick v Bunnings Group  FWC 1869) Bunnings was ordered to compensate an employee it had dismissed for serious misconduct. The Commission held that the dismissal was justified on the facts, but was it unimpressed with the internal investigation likening it to “to a school taking Year 11 students on a bush camp and requiring them to go bush-walking without any training, teacher, map, compass or survival equipment.”
The investigators were two managers with no human resource training and the investigation was found to be flawed for the following reasons:
- the investigators had previously investigated misconduct allegations against the respondent creating a perception of bias is not actual bias;
- one of the decision-makers was a witness to the incident giving rise to the allegations;
- the allegations were not put in writing to the respondent;
- the was not informed as to the investigation process and potential outcomes; and
- the investigation meeting with the respondent was adjourned and reconvened as a disciplinary meeting; and
- the respondent was not provided with the reasons for the termination of his employment.
I was recently appointed to investigate allegations by employees that they were being bullied by a union representative to vote, in a particular way, in relation to an enterprise agreement. This was a very sensitive position for the employer. The union was very active in the particular industry and any disciplinary action by the employer would likely result in an adverse action claim by the union.
Upon receiving a carefully drafted letter from me setting out the allegations and potential consequences, including termination of employment, the union representative and the union commenced negotiations directly with the employer.
Prior to the conclusion of the investigation, the union representative resigned his employment and received a payment in lieu of notice. The direct negotiations would not have been feasible had the investigation been conducted internally as management had been involved in negotiations with the union in relation to an enterprise agreement. Any disciplining of the union representative, without an impeccable process, would likely result in proceedings for an adverse action relying upon the allegation that the disciplining of the union representative was because of his industrial activity in the enterprise bargaining negotiations.
Ultimately, the adherence to a fair and independent procedure resulted in a very sensible outcome for all parties.