Workplace Investigations What You Need to Know!

The fact that a workplace investigation is being conducted is not sufficient as it is important that it is also conducted in accordance with the rules of natural justice or what is otherwise known as procedural fairness. Procedural fairness is a legal concept concerning administrative decision making that is comprised of two fundamental rules being the hearing rule and the bias rule.

Hearing rule: The hearing rule provides that a person who may be affected by a decision be given an adequate opportunity to be heard prior to a decision being made. This comprises the following requirements:

Bias rule: The bias rule requires that the investigator be objectively considered to be impartial and not to have pre-judged the decision. Essentially, this requires an investigator to be free from actual and apprehended bias.

There may be instances where an internal investigator may not be appropriate to conduct a workplace investigation due to actual or apprehended bias. In these instances, it would be prudent to outsource the investigation to an external investigator. In some cases, employers prefer to outsource investigations to avoid any possibility of bias, even when this would not constitute actual or apprehended bias.

The standard of proof for civil matters such as workplace investigations is the ‘balance of probabilities’. This means that in order for an allegation to be substantiated, the available evidence must demonstrate that it is more probable than not that the alleged conduct occurred.

It must be noted that the Briginshaw principle will apply to serious allegations. The standard of proof is still the balance of probabilities but in these circumstances an adverse finding must be supported by stronger or more persuasive evidence. The evidence required to reach reasonable satisfaction is affected by:

1. the seriousness of the allegation;

2. the inherent likelihood or unlikelihood of the alleged conduct;

3. the gravity of the consequences flowing from an adverse finding; and

4. the quality, cogency and reliability of the available evidence.

The Briginshaw case provides that reasonable satisfaction for serious allegations “should not be produced by inexact proofs, indefinite testimony, or indirect inferences” or “by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion.” (Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (30 June 1938))

A workplace investigation must adhere to the requirements of procedural fairness and the standard of proof. Otherwise, the findings can be challenged and not accepted by a court or tribunal such as for example an unfair dismissal hearing leading to a potential compensation order. A properly conducted workplace investigation must therefore follow a lawful and considered process.

While there are a number of investigation processes that can be adopted, a particular process is outlined below.

Phase One: Interview of the Complainant and the Collection of Associated Documentary Evidence – This will require an interview with the complainant and the collection of associated documentary evidence. This will enable the complaint matters to be determined which will form the basis of the allegations.

Phase Two: Interview of Witnesses and the Collection of Associated Documentary Evidence – This will require any witnesses to be interviewed and the collection of the associated documentary evidence relevant to each of the complaint matters. The evidence may or may not be in support of the complaint matters. There should be no bias with the collection of evidence.

Phase Three: Drafting of Allegations - The allegations should be drafted in a succinct manner and contain sufficient particulars so the respondent can understand what is alleged and to enable a response. In some cases, this will require the provision of documentary evidence.

Phase Four: Provision of Allegations to the Respondent and Interview - The allegations will need to be provided to the respondent with sufficient notice in order for the respondent to have sufficient time to prepare a response. An interview will then be arranged to provide the response. However, it is possible for the respondent to provide a written response.

Phase Five: Review of Evidence and Drafting of Report – All the evidence will need to be reviewed and then an investigation report drafted with findings in relation to each of the allegations.

A workplace complaint will invariably require a workplace investigation to be conducted to determine whether there is sufficient evidence to support that a person engaged in inappropriate conduct. A properly conducted investigation is essential as otherwise this will jeopardise any management decision based on the findings. It may even result in a valid unfair dismissal claim and a potential compensation order. The outsourcing of workplace investigations is a good way to avoid any perception of bias.