Procedural fairness workplace investigations – a lot has been said, written and discuss about the recent matter involving Channel 7 and a cadet journalist Amy Taeuber  (link to previous article). It is important to clarify some points;

Procedural fairness workplace investigations – The ejection of the support person.

There is no argument that the support person was ejected from the meeting, however 7 claimed that it was not a disciplinary meeting and therefore there was no right to a support person.

We suggest that you save yourself the argument, always offer and allow a person attending a meeting to have a support person present if that meeting could or may result in a disciplinary outcome.  Personally whenever I interview a complainant, witness or respondent I always offer the interviewee a support person.

The recording of the conversation by the cadet journalist

With the exception of Queensland and Victoria, a person can’t covertly record a conversation without the knowledge other parties present.

In NSW recording a conversation without the knowledge of any person who is a party to the conversation is a breach of the Surveillance Devices Act 2007

7 PROHIBITION ON INSTALLATION, USE AND MAINTENANCE OF LISTENING DEVICES

(1) A person must not knowingly install, use or cause to be used or maintain a listening device:(a) to overhear, record, monitor or listen to a private conversation to which the person is not a party, or(b) to record a private conversation to which the person is a party.

Maximum penalty: 500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case).

(3) Subsection (1) (b) does not apply to the use of a listening device by a party to a private conversation if:

(a) all of the principal parties to the conversation consent, expressly or implicitly, to the listening device being so used.

It is possible that if the recording occurred in NSW that Ms Taeuber could claim that subsection (b) (i) applied, however she would have to argue that they knew this prior to the recording being made

(b) a principal party to the conversation consents to the listening device being so used and the recording of the conversation:

(i) is reasonably necessary for the protection of the lawful interests of that principal party

Does a person accused of misconduct have the right to know who their accuser is?

A person has a right to know what they have been accused of and in most cases that will involve disclosing the details of the complainant.

In the meeting, Ms Taeuber demanded to know who made the bullying complaint, procedural fairness dictates that employees need to have enough information to properly respond to allegations. It is hard to answer a complainant of bullying if a person does not know who it is that they have allegedly bullied.

Revoking Ms Taeuber’s ID pass, phone and IT access?

This tends to suggest that a decision on guilt has already been made. By taking this course of action it seemed that 7 had made the decision in regard to Ms Taeuber future.  This of course will not be tested as the matter was settled.

It is important to keep an open mind during investigations of workplace misconduct

Lesson for employers

  • Procedural fairness in workplace investigations cannot be ignored or circumvented
  • Understand and adhere to the rules of procedural fairness
  • If you don’t understand the rules of procedural fairness get some training
  • Understand the process of investigation misconduct in the workplace in a fair and timely manner

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations, Procedural fairness workplace investigations

www.awpti.com.au
http://awpti.com.au/investigations/
http://awpti.com.au/training/