By Angus Mackenzie
There is a large and growing market for employers seeking external providers of workplace investigations. Unlike in other jurisdictions, the market for providers of workplace investigations is not regulated in Australia. As a consequence, these services are provided by variously skilled persons, including criminal lawyers, generalist lawyers, HR consultants, former police officers and many others.
This means that investigations and the reports arising out of them are also varied in emphasis, structure and approach. The quality of reports provided to employers is also inconsistent.
But will any investigation do?
To answer that question we need to examine the purpose of workplace investigations.
The most obvious purpose of a workplace investigation is to get to the truth. As an employer, you need to make decisions based on facts. This is especially important where termination of an employee’s employment is in issue. No employer wants to give up a valuable asset, an employee, on the basis of incorrect information.
A less obvious but equally important purpose of workplace investigations is to provide an account of the facts that is defensible in a court or tribunal. As an employer, you want to know whether allegations of misconduct made against an employee are substantiated. But if those allegations are substantiated and you take disciplinary action against an employee on that basis, the facts as set out in the investigation report need to be able to stand up to judicial or quasi-judicial scrutiny.
A recent case in the Industrial Relations Commission of South Australia puts this point into sharp focus.
Hedges v Wakefield Regional Council  SAIRComm 11
In this case an employee, Allen, complained that another employee, Hedges, spat at him during an argument between the two employees at work. The employer, Wakefield Regional Council, engaged its local government specialist lawyers to conduct an investigation.
The investigator made detailed inquiries into numerous allegations against Hedges, some of which were not related to the spitting incident. Some of the allegations made against Hedges were over two years old.
The investigation report raised a number of issues with Hedges’ conduct at work. The investigator found allegations that Hedges had been involved in ongoing harassment towards Allen and other employees and that he had interacted inappropriately with the public to be substantiated. Importantly, the investigator found the allegation that Hedges spat at Allen substantiated and noted that spitting on another person is a criminal offence. The Investigator recommended that Hedges’ conduct constituted grounds for dismissal without notice for serious and wilful misconduct.
The Council followed that recommendation and dismissed Hedges summarily. Hedges brought an unfair dismissal claim against the Council under s 106 of the South Australian Fair Work Act 1994 challenging the lawfulness of the dismissal.
Commissioner McMahon’s Decision
Commissioner McMahon found that the investigation conducted by the Council’s lawyers was not as full and extensive as was reasonable in the circumstances.
In particular, the Commissioner found that because the report was directed only at Hedges’ behaviour, it omitted important information about the context of that behaviour. Commissioner McMahon found that Allen’s behaviour was ignored or downplayed in the report, that the report failed to consider whether the cigarette Allen flicked at Hedges was lit, and that the report neglected to mention that, whilst spitting on someone could be a criminal assault, so could flicking a lit cigarette at someone.
Commissioner McMahon also found that the evidence the Investigator collected did not support her conclusion that Allen merely flicked the cigarette towards Hedges’ feet. Rather, the Commissioner found that Allen flicked the cigarette at Hedges, who had to duck to avoid it, and the cigarette was probably lit.
The Commissioner found that these deficiencies in the report were sufficient to render Hedges’ dismissal unfair and ordered that he be reinstated to his former position with backpay.
What does that mean for you?
This decision is the most recent in a consistent line of authority to the effect that a dismissal on the basis of an inadequate or deficient investigation will be unfair. This is an iteration of the requirement that employees be afforded procedural fairness in the process leading to dismissal.
Importantly, if an employee is not afforded procedural fairness, their dismissal will be unfair even if there was a valid reason for it. In practical terms, this means that if your investigation is unfair, the fact that the employee committed the relevant misconduct will not matter.
Conducting a defensible workplace investigation is difficult and complex. It involves, amongst other things, ensuring that:
- The investigator takes into account relevant contextual matters, including the conduct of employees other than the employee against whom allegations are made;
- The investigator justifies his or her conclusions about the credibility of witnesses and the weight to be given to the various pieces of evidence;
- Conclusions are reached on the basis of reasonable inferences drawn from the evidence collected; and
- Appropriate resources and personnel are involved in the investigation process.
In that regard, it is crucial that workplace investigations are conducted by experienced workplace specialists with the expertise and legal support needed to ensure that the results of those investigations will form a defensible basis for disciplinary action, if it is necessary. Indeed, some Fair Work Commission and Federal Court Decisions indicate that an employer’s choice of a workplace investigator may itself be an important factor in determining whether an investigation is fair.
Bartlett Workplace offers a full range of specialist workplace investigation services including conducting investigations, advising on investigations and processes, and training for workplace investigators and decision-makers. If you would like to discuss the workplace investigations needs of your organisation, please contact Victoria Laspas, Senior Workplace Investigator and Director of Communications and Government Relations at email@example.com or on (03) 9603 5000.
 Note: the South Australian Fair Work Act 1994 is different from the Commonwealth Fair Work Act 2009 (Cth). Most employment in Australia is governed by the Commonwealth Act. However, it is submitted that the unfair dismissal provisions in the South Australian Act are sufficiently similar to the equivalent provisions under the Commonwealth Act that the principles discussed in Hedges v Wakefield Regional Council  SAIRComm 11 have some relevance for employers dealing with the Commonwealth Act.
 See, eg, Byrne v Australian Airlines (1995) 185 CLR 410 at 465-468 quoted in Duncan v Bluescope Steel Ltd  FWC 8142 at .
 See s 387(b)-(g) of the Commonwealth Fair Work Act 2009.
 See especially Hedges v Wakefield Regional Council  SAIRComm 11; Duncan v Bluescope Steel Ltd  FWC 8142.
 Duncan v Bluescope Steel Ltd  FWC 8142; Perananthasivam v Telstra Corporation Ltd  FCA 1584.