Recently at the Fair Work Commission employers have been penalised as a result of unfair Workplace Investigations.
Ensuring that Workplace Investigations are conducted in a timely matter is an important consideration at the FWC
In Australian Rail, Tram and Bus Industry Union v NSW Trains  the Fair Work Commission found that there were unreasonable delays in the investigations of a safe working incident involving two train drivers.
The incident occurred in June 2014 and the outcome of one of the investigations was determined in May 2015. The Commission found that this period of 11 months was “excessive and unreasonable”.
The Commission found that the circumstances of the case did not justify this amount of time and delay – the drivers had admitted to breaching the employer’s policy from the outset and the Commission found there was little to consider other than responses from the two drivers regarding mitigation. Another investigation took around six weeks despite there being “nothing complex to determine”.
The employer argued that the reason the investigations took so long was because it was complying with its policies and procedures and because of the Christmas period. However, the Commission was critical of these processes, noting that “justice delayed is justice denied”.
The Commission did not accept that the Christmas period as a reason for delay, noting “Trains does not stop its operations over Christmas and nor should investigations affecting the livelihood and wellbeing of employees”.
Lesson for employers: Investigations should be conducted in a timely manner, failure to do so could be considered to be unfair, being investigated is stressful whether or not you are guilty of the alleged behaviour, put yourself in the shoes of the respondent.
In Cherunkunnel v Alfred Health  an employee lodged a grievance under the enterprise agreement concerning his employer’s decision to issue him with a final warning and to demote him following a complaint made against him by a fellow nurse. The employee was stood down while the matter was investigated.
The Commission considered whether the investigative procedure adopted by the employer complied with the relevant enterprise agreement. The applicant argued that his employer did not comply with the enterprise agreement because he was not interviewed.
The enterprise agreement contained a number of procedural requirements, including that an employer must take all reasonable steps to give the employee an opportunity to answer the allegations, and to conduct a fair investigation.
The Commission found that providing the employee with a reasonable opportunity to answer any allegations and concerns could “realistically only take place during an interview” which ought to have formed part of the investigation.
The Commission found that if the employee is not interviewed as part of the investigation, then it would not have been conducted in a fair manner as the investigator would be making recommendations based on one side of the story.
Further, the employee was required to respond to a recommendation that he show cause as to why his employment should not be terminated without having been heard in relation to his version of the events prior to the investigator forming a view or making a recommendation.
The Commission found this approach to be procedurally unfair but concluded that the employer, in not terminating the employee’s employment but deciding to issue him with a final warning, took an appropriate approach in dealing with the issues relating to his nursing practice.
Lessons for employers: Procedural fairness especially the right to be heard should be considered as being “set in stone” it doesn’t have to be in the EBA to be a principle to be adhered to.
It is often wise to call in an expert to assist with Workplace Investigations, AWPTI can take the stress out of Workplace Investigations – http://awpti.com.au/backup/investigations/
The author Phil O’Brien is a highly experienced and skilled provider of Workplace Investigator and training who can take the stress out of conducting Workplace Investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.
AWPTI – workplace investigations Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations
You can contact me on 0409 078 322 or email@example.com
This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory. It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigators.