Workplace Investigations Unfair Dismissal

Workplace Investigations Unfair Dismissal – Unfair dismissal and the role of the investigation and investigator.

It is important to remember as an investigator you must get it right the first time every time.

As a HR professional, manager or employer you may not be conducting investigations on a regular basis, however you must still get it right the first time every time, remember people’s lives, health, careers and futures may depend on your investigation.

When an employee is dismissed they are within their rights to submit an unfair dismissal application to the Fair Work Commission if they believe that the dismissed has been unfair.

When considering unfair dismissal applications, the Fair Work Commission will consider if the dismissal was:

HARSH: Matters taken into account when determining if a dismissal was harsh or not can include:

• Whether or not the punishment fitted the crime
• The individual circumstances of the employee
• Whether other options were more suitable
• The provision of a support person or a refusal to allow a support person

UNJUST: Whether or not the employer had a valid reason for dismissing the employee.

UNREASONABLE: Whether or not the employee was treated fairly and the dismissal was handled in a reasonable manner including:

• Affording the employee procedural fairness
• Ensuring that a timely and professional investigation is carried out
• Ensuring that the employer has policies in place outlining workplace expectations
• Ensuring that the employer has conducted training outlining workplace expectations

The question of the dismissal being unjust and the valid reason for dismissal.

At the conclusion of an investigation and in a final report an investigator is often asked to provide recommendations based on the findings of the investigation.

While an investigator should not tell the client/employer what do you they can recommend options.

In my final report I will often state, “having regard to the findings of the investigation it is considered that there is sufficient evidence to support a disciplinary outcome up to and including………….”

I am not saying that the employer should, I am saying that there is evidence to support a valid reason for dismissal if that is the path they choose.

So as you can see the presence of the valid reason is down to the evidence gathered in the investigation and detailed in the investigation report in other word the skill of the investigator.  A failure of the valid reason is a failure of the investigation and investigator.

The question of the dismissal being unreasonable

It is the investigator’s responsibility is to ensure that the respondent employee is afforded procedural fairness and that the investigation is carried out in a timely and professional investigation is carried out.

Procural fairness involves provided the person subject of a complaint details of what is being alleged, usually by way of a letter of allegation and allowing them to provide a response usually by interview.

The question of the dismissal being harsh

While the question of harsh can be subjective it is the investigator’s responsibility to ensure that respondent employee is provided with the opportunity to have a support person present during a disciplinary interview.

While the act only refers to an unreasonable denial of a support person it is suggest that a support person is offered then it becomes the choice of the interviewee.

As can be seen if the investigator does not carry out a professional investigation it opens up the possibility that the dismissal can be deemed as unfair.

One of the areas that causes investigation failure is where the evidence does not support the findings or that the investigator relies on irrelevant or inadmissible evidence.

It is vitally important as an investigator to have a follow a process that will lead to a sound outcome from the analysis of the complaint, investigation and interview planning, interviewing, gathering evidence, evidence analysis and finally report writing.

Workplace Investigations Unfair Dismissal – Options for employers

When faced with complaints that require investigation you basicially have 2 choices

1. Conduct the investigation internally
2. Engage an expert

It is not always appropriate or effective for an investigation to be conducted internally. Circumstances where an employer should consider engaging an external investigator include, but are not limited to:

• Where a complaint is made against a senior employee.
• Where the employer does not have adequate resources to properly conduct the investigation internally, particularly if the complaint involves multiple parties, complex issues and/or someone with specialist skills is needed to investigate the complaint.
• Where there is a risk that the complaint cannot be objectively handled by an internal investigator due to a real or perceived conflict of interest.
• If the alleged behaviour or conduct is of a serious (or criminal) nature and the risk of litigation is high, or
• When legal professional privilege may be required over the investigation process.

When making that decision an employer must ask the following questions:

• Do we have someone with the necessary expertise to conduct an investigation/enquiry or dispute resolution intervention?
• Do we have someone with sufficient experience in conducting an investigation/enquiry or dispute resolution intervention?
• Do we have the time to handle this internally?
• Do we want the stress of handling this internally?

Advice for employers if you intend to conduct an internal investigation

To be able to answer the above 1uestions Yes, get training for your HR professionals or those tasked to conduct the internal investigation to ensure that they have best practice workplace investigation skills

AWPTI can help

We have Condcting Workplace Investigation training courses that teach best practice workplace investigation skills.

The courses can be run interlally for organisations that have multiple attendees – details here  or Open courses for individuals the next of which is being run on Thursday 22 &  Friday 23 February 2024 details here

Please contact me for more details enquiries@awpti.com.au