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/

 

Choosing a Workplace investigator – You don’t have to be Sherlock Holmes with a trusted Doctor Watson at your side to conduct a workplace investigation, however to conduct professional, fair, timely and legally compliant investigations you need the right background, skill, experience and a high degree of patience.

As a manager or HR professional if you receive a complaint of bullying, harassment, sexual harassment or any other form of misconduct including misuse of IT/internet/email or other resources, breaches of policy or Code of Conduct, fraud just to name a few your first decision is do it yourself or outsource.

Here is What the Fair Work Commission said about outsourcing investigations

If you decide to outsource, what are you options. Most organisations don’t have to deal with complaints, grievances and allegations of misconduct on an daily basis, so in most cases when they engage an external investigator they really don’t know what they are getting. Here are some suggestions;

A smaller investigation firm.
Advantages: Often a small group of hand picked investigators with high skill and experience levels.
Disadvantages: Less investigators means less availability, I recommend developing a relationship with a trusted firm to get priority service.

Large investigation firm
Advantages: Availability as a result of more investigators
Disadvantages: Quality could be an issue, do you know who you are getting?

Law firms
Advantages: Knowledge of the law
Disadvantages: A possible lack of experience conducting investigations after all it’s not their core business.
Many law firms have relationships with consultant investigators to overcome a lack of internal skill and experience.

Other Professionals (HR consultants, mediators, counsellors, therapists, psychotherapists)
Advantages: None that I can see, as an investigator I wouldn’t advise on recruitment or family therapy the same should apply (in my opinion)
Disadvantages: Lack of skill and experience conducting investigations. They will likely be unlicensed with no actual investigative qualifications.

Qualifications and licences required

If you are going to outsource you should be aware that in most Australian states investigators are required to be qualified and licenced. In NSW investigators must hold a Certificate III in Investigation Services and a an applicable licence. In NSW Failure to do so could render the investigator in breach of the  Fair Trading Amendment (Commercial Agents) Act 2016, other states have similar provisions.

Certain persons including Police and legal practitioners holding a current legal practising certificate are exempt under the Act.

You can check is an investigator is licenced here

To investigate matters involving Commonwealth Government departments investigators must hold Certificate IV in Government investigations as per the Australian Government Investigation Standards.

Insurance

It is wise to ensure that the investigator has public liability and professional indemnity insurance.

Background

The backgrounds of workplace investigators are varied, however we recommend that you consider investigators who have a background that involves investigation, interviewing, gathering analysis of evidence, report writing, presenting evidence at court/tribunals and a strong knowledge of the law. Many very good investigators have a policing background.

How do you find an investigator?

When issues arise organisations usually have two choices when they decide to outsource;
(1) Go to Google – If you choose a workplace investigator or investigation company from the front page of Google, does that mean you are picking a good investigator or just one that has spent money on SEO or Ad Words?

(2) Engage someone you know, someone you trust, someone you have at least met and discussed your needs with, someone whose background, experience and qualifications you have reviewed. This article may be of assistance – http://awpti.com.au/workplace-investigator/

In relation to Google, Australian Workplace Training & Investigation (AWPTI) ranks highly on Google in a number of investigation and training categories, I haven’t spend a cent of SEO, however I do publish a lot of interesting and I think helpful material via my website blog page http://awpti.com.au/blog/ and via LinkedIn https://www.linkedin.com/in/philobrien1/ (if we are not connected, please feel free to send me a request).

I am always open to meeting with organisations to discuss how I can assist them with a view to developing an on-going relationships.

Choosing the right investigator can save you time, money and worry. getting it right the first time every time is essential.

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 Allegations and Procedural Fairness- The importance of ensuring correct procedure when it comes to advising a person subject of a complaint what the actual allegations against them are.

During the course of an investigation there comes a point where you must ensure that the person subject of a complaint is afforded procedural fairness.

Failure to afford an employee Procedural Fairness can result in;

  • Successful unfair dismissal action by terminated employees at the Fair Work Commission
  • Orders for compensation against the employer
  • Orders for reinstatement of the terminated employee
  • Negative publicity and damage to brand image
  • Negative impact on the business in general

General rules of Procedural Fairness – the rights of the employee   

The right to know the nature of the allegation/complaint against them in cases of behaviour issues

The right to know is referenced in the Fair Work Act 2009 – s387 – Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account;
(b) whether the person was notified of that reason

The right to respond to the allegation/complaint or performance issue

The right be heard or to respond to an allegation/complaint or performance issue is referenced in the Fair Work Act 2009 – s387 – Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

The excerpt above is from the AWPTI Procedural fairness manual – http://awpti.com.au/procedural-fairness-manual/

Important questions are:

Q1. How do you advise the person subject of a complaint what the allegations are?
Q2. What information do you need to provide?

A1. You can advise the person verbally or in writing, (includes via email)

I always recommend providing the allegations in writing, why?

  1. You are able to clearly outline the allegations, verbal allegations can be poorly expressed and/or misunderstood and may be subject to argument at a later date
  2. The person subject of the complaint has the letter or email to refer to when formulating their response.  Full details of a verbal allegation can be forgotten, was the person fully listening at the time, how would you be able to tell?
  3. There can be no argument as to the nature of the allegation. A respondent can dispute the content of a verbal allegation, how can you prove it?
  4. providing verbal allegation only could be considered by the Fair Work Commission as poor process
  5. Using verbal allegations can lead to complaints of a lack of procedural fairness

In the case of Mr Michael Fitzpatrick Bunnings Group Ltd T/A Bunnings

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

A2. What information do you need to provide?

If you are going to take the sensible (in my opinion) course it is important that your letter of allegation is complete and contains carefully worded allegations.  For full details of the content of a letter and the construction of allegations please see the AWPTI Procedural fairness manual – http://awpti.com.au/procedural-fairness-manual/

Your allegations must contain enough information to allow the person subject of the complaint to respond, ideally including the time, date and place where the behaviour or misconduct took place.  The actual behaviour subject of the allegation, The person/s subject of the behaviour (victim) and what policy the behaviour breached.

AWPTI can assist to take the headache of workplace investigations from you.  When we undertake an investigation we draft and provide to you all the letters to parties including comprehensive and legally compliant letters of allegation.

Should you wish to do it yourself we have a comprehensive Investigation Document Toolbox available at – http://awpti.com.au/investigation-toolbox/ and other products to assist HR professional and managers at – http://awpti.com.au/hr-products/

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/