An unfair workplace investigation is an investigation in the workplace that is not impartial or procedurally fair. It may involve bias, lack of transparency, or failure to follow correct procedures.
A poor investigation denies the parties an equal chance to defend themselves. It may also fail to take into account all relevant evidence. Alternatively, it may encourage choices based on opinions or biases rather than objective data.
An unfair investigation can result in legal action against the employer and damage the business’s reputation. Employers must conduct workplace investigations correctly, treat everyone fairly, and ensure a thorough investigation.
Farrah Motley is the author of this article. Farrah is an employment lawyer. She explains unfair workplace investigations in Australia. As well as examples, the rights of employees, and tips and tricks for employers.
When is a workplace investigation unfair?
When an employee is accused of misconduct or wrongdoing, the employer may initiate a workplace investigation. The investigation helps the employer to determine the truth of the allegation.
Conducting workplace investigations has become a common practice for businesses to protect themselves against legal action. Investigations into workplace conduct are frequently done by outside consultants (including employment lawyers). Employers should seek independent legal advice to avoid any perceived bias.
The purpose of a workplace investigation is to compile all important information and proof regarding the allegations. This enables a judgement to be made about whether there are workplace issues that need to be addressed. The question is “is it more likely than not that the alleged conduct is true?”. An employer may take disciplinary action if the answer is yes.
To ensure fairness, workplace investigations must be conducted fairly, impartially, and thoroughly for all parties involved. If they do not carry out the workplace investigation in a procedurally fair way, it may be considered unfair.
Workplace investigations and procedural fairness
Procedural fairness is also referred to as natural justice. It is a fundamental aspect of Australian law and is crucial in a workplace investigation.
Additionally, natural justice ensures that people are given a fair chance to reply, make their case, and defend their rights in court. Further, it protects employees against arbitrary judgments and supports continued public trust in the legal system. As such, the decision-making process must be fair , impartial and unbias.
Procedural fairness principles
Here are some key principles to ensure procedural fairness in workplace investigations under Australian law:
Impartiality
The workplace investigator must be impartial and free from bias. This means they should not have a personal or professional relationship with any of the parties involved in the investigation. If there’s a potential conflict of interest, an external workplace investigator should be appointed. This could be an employment lawyer.
Further, there should be no pre-determined outcome. Pre-determination will automatically mean that the investigation is unfair. Any decisions that are made as an outcome of the investigation need to be informed decisions. This means that a decision must not be made before consideration of the investigation findings.
Right to be heard and opportunity to respond
All parties involved in the investigation should have the opportunity to present their side of the story. This includes the person who made the complaint, the person against whom the complaint was made, and any witnesses.
It is of utmost importance that everyone has adequate notice before being required to provide a witness statement. Employees may, where appropriate, have a support person present. However, there is no rule that requires a support person present when taking witness statements.
Evidence consideration
The investigator must collect evidence that is relevant to the issue. All relevant evidence gathered should be considered in the investigation. This includes evidence that supports the allegations and evidence that contradicts them.
Confidentiality
Investigators should conduct the investigation confidentially to protect the privacy of all parties involved. They should only disclose information about the workplace investigation on a need-to-know basis.
Timeliness
Conduct the investigation in a timely manner. Unnecessary delays can cause stress and anxiety for the parties involved and may also impact the quality of evidence.
Communication
Investigators should keep all parties informed about the progress of the investigation, within the bounds of confidentiality. They should also inform them about the outcome of the investigation and any actions that the employer will take as a result.
Documentation
All steps of the investigation should be documented, including the allegations, the evidence, the findings, and any actions taken. This can provide a record of the investigation, which may be important if someone later reviews or challenges the workplace investigation.
These principles ensure that employers conduct workplace investigations fairly and transparently, and treat all parties with respect. Failure to adhere to these principles can lead to allegations of unfairness and potential legal consequences.
Examples of misconduct that leads to workplace investigations
Behaviour that may lead to an investigation may include when an employee breaks company rules. It may also include behaviour such as misuse of company resources or failure to follow safety protocols.
In cases where an employee’s personal interests conflict with their professional responsibilities, potentially leading to unethical or improper actions.
Actions that harm the company or its employees, like sexual harassment or fraud, are likely to be investigated.
Complaints or grievances from employees when there are issues involving bullying, discrimination, or unfair treatment in the workplace.
When an employee reports illegal activities within the company, the company would likely conduct a workplace investigation to verify these claims.
Examples of unfair workplace investigations
If a workplace investigator shows favouritism or bias towards one party, it could lead to an unfair investigation. If a workplace investigator is friends with the person accused of misconduct, they may not investigate fairly.
Where an investigator fails to thoroughly examine all the evidence or does not interview all relevant witnesses, the investigation may be considered unfair. An investigation may be unfair if an employee complains about harassment and the workplace investigator only interviews the accused.
This unfairness arises because the company does not interview other employees who witnessed the incident. This lack of interviews with other employees may indicate an unfair investigation.
If a workplace investigator does not follow the established procedures for conducting a workplace investigation, it could be deemed unfair. For example, if an employee is not given the opportunity to respond to claims against them, this could mean an unfair investigation.
If an investigation is unnecessarily delayed, it could disadvantage the parties involved and may be seen as unfair. For example, if an employee raises a serious complaint and the investigation is not commenced for several months without a valid reason, this could be seen as unfair.
Investigations and Fair Work unfair dismissal?
Yes, a workplace investigation that is unfair may result in unfair dismissal. In the case of R v Imperial Mushrooms Pty Ltd [2021] FWC 1332 Commissioner Cambridge, awarded a terminated mushroom picker the maximum compensation of twenty-six weeks’ pay. The decision relied on a flawed investigation and an excessive response to the employee’s alleged misconduct.
The employee had been working for about 15 years without any issues until February 2020. She received several warnings for not following policies and procedures, arguing with a supervisor, and late notice of absence.
The incident leading to her termination involved a missing knife, which was later found by the employee. The company dismissed the employee despite having established procedures to handle such situations. The employer stated that the missing knife posed a serious health and safety risk and damaged the business’s reputation.
Commissioner Cambridge ruled the dismissal invalid. Fair Work stated that the disciplinary action was grossly unequal to the employee’s conduct. Further, the workplace investigation process was unjust and unreasonable. The Commissioner awarded the employee the maximum allowable compensation of $19,240, as they deemed reinstatement unsuitable.
Another case if that of Mark Andrawos v MyBudget Pty Ltd (U2018/2379). The Fair Work Commission determined that Mr Andrawos’ suspension and subsequent termination from MyBudget lacked sufficient procedural fairness.
The Commission found that he was not given adequate opportunity to respond to the allegations against him. Mr Andrawos had less than 24 hours to respond to the allegation letter, which supported the conclusion. Additionally, they denied him access to colleague statements, phone call recordings, and text message screenshots. However, MyBudget was using this as evidence in the disciplinary proceedings.
Consequences for Employers Conducting Unfair Workplace Investigations
Employers in Australia who conduct unfair workplace investigations can face several consequences:
- Employees may take legal action against the employer. This is by lodging a claim with the Fair Work Commission or a relevant State industrial relations commission or court proceedings.
- The Fair Work Commission or a court can rectify the unfair firing of an employee due to an unjust investigation. They can either compel the employer to reinstate the employee or provide them with monetary compensation.
- Unfair workplace investigations can harm an employer’s reputation, making it harder to attract and retain talented employees.
- Legal action can result in significant financial costs, including legal fees and potential compensation payments.
- Regulators can punish employers for unfair workplace investigations, especially if they violate health and safety or anti-discrimination laws.
- To prevent negative outcomes, employers must conduct workplace investigations fairly and in line with workplace laws and regulations.
How can a workplace lawyer help avoid Unfair Workplace investigations?
An employment lawyer can provide significant assistance in cases of unfair workplace investigations under Australian law in several ways:
A lawyer can provide advice on your rights and obligations under the Fair Work Act 2009 and other relevant laws. They can explain what a fair and legal investigation is and the legal consequences of the workplace investigation process.
If an employee has made a claim to the Fair Work Commission or a court, a workplace lawyer can represent you in these proceedings. They can prepare and lodge necessary documents and evidence, present your case, and advocate on your behalf.
A lawyer can negotiate with the other party on your behalf. They can also consider the workplace investigation process.
A lawyer can check your workplace rules to make sure they follow the law and best practices for workplace investigations.
Key takeaways
Unfair workplace investigations can have serious implications for both employers and employees. It’s important for employees to know their rights during a workplace investigation to prevent any unfair labour practices.
For employers, it’s crucial to conduct investigations that are thorough, impartial, and in compliance with all relevant laws and regulations. As such, the employees must be given the opportunity to:
- be given the opportunity to be heard by allowing them to present evidence contradicting the allegation against them;
- have their evidence must be considered;
- have an investigation made in a timely manner;
- have the grounds of the investigation explained to them; and
- be treated fairly, impartially, and transparently.
Failure to comply with procedural fairness may result in an unfair dismissal of the employee and can lead to serious legal consequences.
To protect the rights of the employees, it is highly encouraged to refer the issues to a lawyer to assist them with their concerns. Lawyers can provide advice on the correct procedures for conducting a workplace investigation, and represent you in legal proceedings.
