Misconduct Investigation Allegation Letters. When AWPTI conducts an investigation we provide all the documentation including letters of allegation to our clients however I am often asked “Should we provide some sort of letter or email with the allegations?”
The answer is always YES.

Why: Recently I published an article about allegation letters, procedural fairness and why it is essential…Read more

In the case at the FWC of K v K&S Freighters Pty Ltd [2016] FWC 1555 (24 March 2016) an employee of 30 years was dismissed over misuse of a fuel card.  Commissioner Bissett found there was a valid reason for dismissal but there had been was a lack of procedural fairness.

The commission was satisfied the applicant sent freight without consignment notes, sent freight without charge and used a fuel card while he was on annual leave. Mr Kirkbright’s argument that this was how it had always been was not satisfactory.

Lack of procedural fairness

The Commissioner found that Mr Kirkbright was not advised that his conduct was an issue or were being investigated. In addition he was not provided with an opportunity to consider what was being alleged or the opportunity to respond.

The commission also considered that the HR department should have been better prepared for the meeting where Mr Kirkbright was dismissed:

“Whilst Mr K’s language in the meeting of 17 August 2015 leaves much to be desired; he displayed an appalling lack of respect for his manager and co-worker and this was the first time he had been confronted with the allegations. His reaction was not outside the realm of possibilities and should have been foreseen. The human resource manager, if she had not, should have walked the HR officer through what to do in such a circumstance.”

“The meeting should have been halted, Mr K given the allegations in writing and he should have been given an opportunity to respond either in writing or in a meeting at a future date (which could have been in a couple of days).”

The Commission found that the lack of procedural fairness and long service of the employee were both relevant.

On providing an opportunity to respond the commission said:

“In Crozier v Palazzo Corporation Pty Ltd… the full bench said:  As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified…”

Mr Kirkbright sought reinstatement but it was considered inappropriate. The matter was set down for compensation to be considered.

Later in Kirkbright v K&S Freighters Pty Ltd [2016] FWC 2743 (4 May 2016) the Commission ordered compensation in the amount of $11,624.25 plus superannuation.

Misconduct Investigation Allegation Letters – Lessons for employers

  • Procedural fairness cannot be ignored, it requires an employer to provides any employee accused of misconduct with a chance to respond and put their side or version of events forward before any final decision is made.
  • Don’t take short cuts, it’s not worth it in the long run.
  • If you are not sure what to do, get help, call an expert.

As I mentioned when we conduct investigations we ensure that all the documentation is legally complaint and that procedural fairness is afforded. If you wish to conduct investigations into misconduct internally I recommend;

  1. Have your people, HR professionals or managers trained. AWPTI can provide 1 and 2 day investigation training courses for HR professionals or managers – Read more
  2. If you have an understanding of the investigative process make sure all your documentation is complaint. For those that wish to DIY we have created an Investigation Document Toolbox – Read more
  3. Read our TOP TEN tips for workplace Investigations Misconduct, Complaints and Grievances – Read more

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

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

 

Workplace investigation documents – It is important to understand that a workplace investigation may be scrutinised by a court in the case of a complainant suing in negligence for a breach of a duty of care in a bullying or sexual harassment matter for example the case of Mathews v Winslow Constructors where an award of 1.3 million dollars was ordered or by the Fair Work Tribunal in the case of an unfair dismissal application is made by a terminated employee.

A crucial part of any investigation are the workplace investigation documents including;

  • Letters to the complainant and witnesses
  • Letters of allegation to respondents
  • Risk assessments
  • Witness statement
  • Interim reports
  • Final reports

It is essential that firstly these documents actually exist and secondly that they are compliant.

In the case of Michael Fitzpatrick v Bunnings Group Ltd

The commissioner found (at 85)
In addition to not providing Mr Fitzpatrick with the basis of the allegation, in a written form, the Commission was not provided with a written record of the disciplinary investigation. The Commission was not provided with a written record of what actions were taken against Mr Fitzpatrick or provided with an adequate written record of the reasons why he was dismissed for serious misconduct. The only evidence provided to the Commission was a very abridged record of a disciplinary discussion/meeting on 2 October 2013 at the time of Mr Fitzpatrick’s dismissal

and at (91)
the Employer should have reduced to writing the allegations regarding Mr Fitzpatrick’s conduct which could lead to his dismissal. This would have enabled Mr Fitzpatrick to respond to the specific allegations and supporting evidence, rather than Mr Vitler and Mr Cherry making a choice regarding the “facts” based on the initial statement

The commission found in favour of Mr Fitzpatrick
Link to case here – Fitzpatrick v Bunnings Group Ltd T/A Bunnings

Drafting letters, especially letters of allegation is a complex task as there are important components that must be included to ensure legal compliance.

Take the headache out of ensuring that you have the right workplace investigation documents with the AWPTI Investigation Document Toolbox – http://awpti.com.au/investigation-toolbox/

The toolbox also contains;

  • Step by step workplace investigation instructions (20 documents) (pdf)
  • Complaint Analysis Chart (pdf)
  • Investigation Flow Chart (pdf)
  • Investigation Interview Manual (pdf)
  • Template Risk Assessment form (Word doc)
  • Template investigation plans x 2 (Word doc)
  • Template letter to the complainant (Word doc)
  • Template letter to the witnesses (Word doc)
  • Template initial letter to the respondent (Word doc)
  • Template letter of allegation to the respondent (Word doc)
  • Template complainant interview guide/script (Word doc)
  • Template witness interview guide/script (Word doc)
  • Template respondent interview guide/script (Word doc)
  • Sample witness statement (Word doc)
  • Sample interim report (Word doc)
  • Sample final investigation report (Word doc)

AWPTI Investigation Document Toolbox – http://awpti.com.au/investigation-toolbox/

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

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

 

Workplace Investigation Document Toolbox 

As an employer or business owner if you are confronted by workplace misconduct you must decide do it yourself or call in an expert. There are a number of reasons for making a decision to do it yourself but often the cost is a major factor, this is where the AWPTI Workplace Investigation document toolbox can assist you at the fraction of the cost of an external investigator.

Using easy-to-follow plain English advice, our DIY investigation toolbox will enable you to conduct a stress-free workplace investigation.  Helpful documents such as our uniquely tailored interview scripts take the hard work out of interviewing complainants, witnesses and the alleged wrongdoers.

The Australian Workplace Training and Investigation toolbox contains full documentation and far more than is offered anywhere else including a full set of workplace instructions, an interview manual, letters, interview scripts and sample investigation reports.

The Workplace Document Investigation toolbox will:

  • Guide you through the entire investigation – from the outset to conclusion
  • Assist you to prepare an investigation plan and draft interview plans
  • Guide you through the process of interviewing with the interview manual and scripts
  • Reduce the fear of being sued by aggrieved employees as a result of a poorly conducted investigation
  • Explain procedural fairness, the rules of evidence, conflict of interest and bias.
  • Tell you the “what”, the “why” and the “how” of workplace investigations

The comprehensive workplace investigation document toolbox contains 35 documents and an Investigation Interview Manual:

  1. Step by step workplace investigation instructions (20 documents) (pdf)
  2. Complaint Analysis Chart (pdf)
  3. Investigation Flow Chart (pdf)
  4. Investigation Interview Manual (pdf)
  5. Template Risk Assessment form (Word doc)
  6. Template investigation plans x 2 (Word doc)
  7. Template letter to the complainant (Word doc)
  8. Template letter to the witnesses (Word doc)
  9. Template initial letter to the respondent (Word doc)
  10. Template letter of allegation to the respondent (Word doc)
  11. Template complainant interview guide/script (Word doc)
  12. Template witness interview guide/script (Word doc)
  13. Template respondent interview guide/script (Word doc)
  14. Sample witness statement (Word doc)
  15. Sample interim report (Word doc)
  16. Sample final investigation report (Word doc)

For more details and to order the investigation Toolbox check out – http://awpti.com.au/investigation-toolbox/

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We have a number of other investigation products and training programs coming online soon.

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

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