Courts and Tribunals in Australia have high expectations of internal human resources staff who conduct workplace investigations. These high expectations are reflective of the importance of workplace investigations where investigators are tasked with analysing serious allegations and making findings that could lead to disciplinary action. While internal investigators do not need to have the forensic skills of the police or a lawyer, they must have a sound working knowledge of the rules of evidence and the standard of proof applicable when making findings. Our Employment & Safety team have compiled key tips to ensure your organisation undertakes competent and credible workplace investigations:

Skills

HR Managers are not expected to have the forensic skills of police or lawyers, but Courts and Tribunals are frequently making the comment that internal investigators must be competent in the application of rules of evidence and natural justice (for example, ensuring the investigation in conducted efficiently and fairly). This includes providing the respondent with the opportunity to respond, ensuring all relevant witnesses participate and submissions are considered, making conclusions based on evidence, and remaining objective and impartial.

Flaws

Common investigative flaws include where the scope of the investigation is too narrow; not all relevant witnesses are interviewed; there are unjustifiable delays; there is over reliance on hearsay; or the wrong (or no) standard of proof is applied to the facts. Be careful to avoid falling into these traps, as findings based on a flawed workplace investigation are more likely to be deemed invalid and may be relevant in any subsequent unfair dismissal proceedings. It is best to conduct an investigation once, and do it properly, rather than hastily conducting an investigation only to have the findings criticised.

Suspension

In most cases an employer will be able to lawfully suspend an employee (on pay) while undertaking a workplace investigation for as long as reasonably necessary to make concluded findings. This is the case even where there is no express suspension clause in the written contract (Avenia v Railway & Transport Health Fund Ltd [2017] FCA 859).

Participation

If an employer asks an employee to attend an interview with an investigator, this will generally be considered a lawful and reasonable direction. Failure by an employee to attend an interview when they have been directed to do so may be a valid reason for dismissal (Damien Stephen v Seahill Enterprises Pty Ltd [2021] FWCFB 2623).

Standard of proof

Findings must be made applying the Briginshaw test. Practically speaking, the test requires workplace investigators to closely scrutinise all evidence to ensure it is strong enough to substantiate the allegations on the balance of probabilities. The more serious the allegation is, the more evidence that will be required to substantiate the conduct; for example, an investigator may need multiple sources of corroborated evidence or CCTV footage.

Process

Terms of contracts or policies that require a particular process to be followed when investigating complaints need to be complied with in order to avoid allegations of breach of contract. Contracts should be carefully drafted to exclude promissory terms which may expose employers to litigation for flawed workplace investigations (Romero v Farstad Shipping Pty Ltd [2014] FCAFC 177).

Natural justice

While natural justice is essential in workplace investigations, there is no rule of natural justice that requires the production of an investigation report to the subject of allegation. Similarly, employers do not have to adopt an “open file” policy which would have the effect of disclosing every submission or piece of evidence to the person under investigation (Independent Education Union v Father Nicholas Pearce [2020] FWC 5416).

Impartiality

In order to conduct a fair investigation, an investigator needs to be objective and impartial. This is important in ensuring natural justice is afforded to the respondent during the investigation. For example, the investigator should not have been involved in any prior disciplinary action involving the respondent, otherwise there may be a risk that the investigation will be considered to be flawed and any dismissal may be considered unfair (Anders v The Hutchins School [2016] FWC 241).

Conclusion

If your internal team requires outsourced investigations or specific training on how to conduct workplace investigations, please contact your Employment & Safety team local contact at Dentons or one of the authors of this article.

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