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10 tips for a fair and defensible workplace 


Wednesday, 10th December 2014, by Loran McDougall

In today's Workplace Bulletin:
  • Case Law: FWC rejects findings of a flawed workplace investigation
Dear Reader,

If you receive an allegation that one of your employees has engaged in illegal or inappropriate behaviour in your workplace, you will likely need to undertake a workplace investigation.
It’s imporant to get this right for a number of reasons, not least of which is that if an employee challenges your findings, your investigation could end up being examined in a court of law. If your investigation is found to be procedurally unfair or otherwise flawed, there could be serious consequences for your business. For example, if you dismissed an employee based on the findings of a flawed investigation, you may be ordered to reinstate the employee and pay compensation.
This, in fact, is exactly what happened to an Australian employer last month. In today’s bulletin, Charles Power details the case and gives you some important tips to help you ensure that your investigations are fair and legally defensible.
Until next time,
Jessica Oldfield
Loran McDougall
Workplace Bulletin
Click here to find out how to make sure you’re fully equipped to conduct an effective workplace investigation– without creating any legal risks for your business.

Case Law: FWC rejects findings of a flawed 

workplace investigation

by Charles Power
Editor-in-Chief, Employment Law Practical Handbook

In Francis v Patrick Stevedores Holdings Pty Ltd (2014), a workplace investigation was initiated after an employee, Mr Nichol, alleged that another employee, Ms Francis, grabbed him around the throat following an argument. Ms Francis responded that she considered Mr Nichol a friend and that, while she may have pointed at him and touched his shirt, she did not grab him around the throat. Rather, she said, Mr Nichol had punched her in the throat.
HR subsequently investigated Ms Francis’ conduct. The investigation included input from six witnesses who did not corroborate Mr Nichol’s version of events and input from one witness who did. Despite this, the investigator reported to the decision-maker that Mr Nichol’s allegations had been corroborated by “numerous individuals” and that she had thus found the allegations to be proven. It was recommended that Ms Francis be dismissed for misconduct.
Following her dismissal, Ms Francis lodged an unfair dismissal claim with the FWC. Her counsel described the employer’s workplace investigation by saying, “The respondent has not objectively examined the material before it; rather it had identified parts they felt supported Mr Nichol’s claim and ignored the rest.”
The FWC ordered that Ms Francis be reinstated and paid for all lost remuneration, primarily due to “serious and fundamental flaws” with the workplace investigation. It noted that:
  • the employer was required to prove on the balance of probabilities that the misconduct occurred, i.e. it needed to be satisfied that it was more likely than not that the alleged behaviour occurred to make a finding that the allegations were proven; and
  • Ms Francis was entitled to procedural fairness, i.e. a fair and proper procedure needed to be applied for the investigator to make a finding of fact and for the findings of the investigation to be legally defensible and sound.
After assessing evidence from the witnesses, the FWC found that the allegations against Ms Francis could not be substantiated.
10 tips for a fair and defensible workplace investigation
  1. Ensure that you are free of any predetermined ideas or preferences as to the outcome of the investigation.
  2. Do not have a personal interest in the outcome.
  3. Do not have any close pre-existing relationship with any participant in the investigation.
  4. Provide the allegations to the employee who allegations have been made against (the respondent) in sufficient detail.
  5. Give the respondent an opportunity to respond to the allegations, and allow them enough time to do so.
  6. Always present evidence to a particpant in the investigation and allow them to respond to it if that evidence contradicts their evidence or is likely to be used to make a finding of fact against a party in the investigation.
  7. Ensure the respondent is aware of potential disclipinary action that might occur as a result of the investigation.
  8. Remain impartial when assessing the credibility of all participants in the investigation, including witnesses.
  9. Ensure that there is sufficient evidence before making findings on the balance of probabilities.
  10. Make recommendations to decision-makers based on corroborated evidence.
If you need to investigate allegations of misconduct in your workplace, this comprehensive resourcewill guide you, step by step, through the process. This way, you can be sure your investigation is fair and legally sound.
Charles Power
Charles Power

Employment Law Practical Handbook
P.S. If you are a subscriber to the Employment Law Practical Handbook, keep an eye out for the latest issue of the Employment Law Insider, which will be delivered to your inbox on Friday. In this issue, I discuss long service leave and how it should be managed in the workplace, via a 10-minute video and supporting case studies, articles and more.

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