Workplace investigations refresher part 9: Procedural fairness – providing an opportunity to respond

In our third article on procedural fairness in our series on workplace investigations, we examine what it means to provide a respondent in a workplace investigation with an opportunity to respond, and set out some practical tips employers can take to mitigate the risk of falling foul of this important element of procedural fairness.

The key rule of procedural fairness

As we covered in a previous article, once allegations have been drafted, they must be put to a respondent for a response. The key rule is that the respondent must be given a fair and reasonable opportunity to respond to the allegations before any final decision is made. This includes any new allegations that may arise in the course of an investigation.

Although the employer must provide an opportunity to the employee to respond, the employee does not need to if they do not wish to do so. The relevant question will be whether an opportunity was provided before a final decision was made.

What is an "opportunity to respond" in practice?

What constitutes an adequate "opportunity to respond" is difficult to pin down in practice. There is no consistent definition. In some organisations, further clarity about what constitutes an opportunity to respond may be contained in a workplace policy or enterprise agreement.

Australian Public Service agencies are required under section 15(3) of the Public Service Act 1999 (Cth) (PS Act) to have procedures in place in relation to handling APS Code of Conduct matters. These procedures are required to ensure that the employee who is the subject of the allegations has "a reasonable opportunity to make a statement" in relation to:

• any suspected breach of the Code; and
• any decision on the sanction resulting from an established breach of the Code.

Some employers have processes to assist employees to respond in these circumstances, for example, by not requiring an employee to attend work for a period of time so that they can prepare a response. It is important to note that this is not the same as suspension from duty.

The type of response that can be provided is also a fluid concept. Depending on an employee's or an investigator's preference, a response can be provided in writing or orally as part of an interview. The nature of a particular investigation may help determine the most helpful response. For example, in complex investigations an interview may be a more useful way for an employee to respond as it allows the investigator to put additional questions to the employee as information arises in the course of the interview. It also allows the investigator to better assess credibility, which is useful when it comes to assessing the evidence.

It is important to note that sometimes organisations have different processes in place for investigations (and employee responses in those investigations) depending on the seriousness of the conduct – for example if potential serious misconduct under the Fair Work Regulations 2009 (Cth) is involved. Investigators should keep in mind that processes may be different from case to case within the same organisation.

What happens if you fail to do provide an opportunity to respond?

Failing to provide an opportunity to respond runs the risk of jeopardising an entire investigation and having the outcome challenged through the Fair Work Commission (FWC), on internal review or application to the Merit Protection Commission. Whether a respondent was provided with an opportunity to respond is a factor that will be considered on review, and particularly in unfair dismissal cases when the FWC is forming a view about whether a dismissal was "harsh, unjust or unreasonable" in the context of an unfair dismissal application (see section 387(c) of the FW Act). In addition to a decision being overturned, this can also result in paying compensation to the former employee or even reinstating them to their position.

As always, the case law provides some examples of what to do, and what not to do, in providing a respondent with an opportunity to respond.

Changing employee circumstances may require changing the opportunity available

The recent Fair Work Commission (FWC) decision of David Bridge v Globe Bottleshops Pty Ltd T/A Wellington Beer Wine and Spirits [2021] FWC 3153 concerned an investigation process which was described as "nothing less than procedurally disastrous" by Commissioner Harper-Greenwell, in part because of the Bottleshop's actions in providing Mr Bridge with an opportunity to respond.

Mr Bridge was alleged to have sexually harassed a customer by saying words to the effect of "would you like a root hehehe receipt" when she was purchasing items from the shop. The customer submitted a complaint in writing on 15 March 2021. Mr Bridge was stood down immediately until an investigation could be completed. Mr Bridge was asked to provide a response to the allegation by 9am on 17 March 2021; he refuted the allegation, but the Bottleshop wanted further information. It provided an additional 48 hours to provide a written response, and stated that the outcome of the investigation would be decided at 12pm on Friday 19 March 2021. Mr Bridge responded on the morning of 19 March stating that he had not been afforded due process because he was not able to see the CCTV footage of the incident to refresh his memory. He also notified the Bottleshop that he had made an appointment with his GP but could not get an appointment until the following Monday (22 March) and would be providing a medical certificate due to anxiety. The Bottleshop emailed him again later that day stating the investigation was completed and terminated his employment for serious misconduct.

The following factors were relevant in the FWC's characterisation of the Bottleshop's actions in providing Mr Bridge with an opportunity to respond:

• Mr Bridge advised the Bottleshop during the response period that he was unwell and was seeking a medical certificate. However the Bottleshop moved to terminate his employment before he could provide a further response.
• Mr Bridge was asked to respond in writing, and was not provided with any additional information to help him respond after he requested it. At the same time, the Bottleshop conducted multiple interviews with the complainant and did not offer to interview Mr Bridge.
• The Bottleshop did not follow a show cause process in deciding to terminate his employment.
• The Bottleshop did not provide the findings of its investigation prior to the decision to terminate his employment being made.

As a result of the procedural deficiencies, the Bottleshop was ordered to pay compensation to Mr Bridge.

All that is required is an opportunity

The case of Peter Angelakos v Coles Supermarkets Aust Pty Ltd T/A Coles Supermarkets [2019] FWC 29 concerned an investigation conducted by Coles into 39 allegations of sexual harassment by Mr Angelakos against a number of different employees. An interview was held on 23 February 2018 for Mr Angelakos to provide a response to the allegations, during which he asked to respond in writing.

Coles followed up four days later to find out when he would be providing his written response. Mr Angelakos asked for time to seek legal advice; Coles asked for a response by 1 March. This he did, and was informed of the investigation findings on 8 March. An outcome meeting was held on 9 March where he was provided with a further opportunity to respond and show cause as to why his employment should not be terminated. Following his response in this meeting, Mr Angelakos' employment was terminated for serious misconduct.

In his unfair dismissal application Mr Angelakos alleged that the opportunities to respond were inadequate. Coles submitted that Mr Angelakos was afforded this opportunity; time was extended for him to respond during the internal investigation, and ultimately he did provide a written response.

In weighing up the evidence Commissioner Hunt noted that Mr Angelakos was notified of the allegations on 23 February but did not start working on a response until 1 March after he had received legal advice. The Commissioner suggested that Mr Angelakos could have used the time he was not at work to prepare his written response. Ultimately Commissioner Hunt was satisfied that Mr Angelakos was provided with an opportunity to respond.

In the end, Mr Angelakos' unfair dismissal application was dismissed. This case is a useful reminder that all employers are required to do is provide a reasonable opportunity to respond – it does not have to be the ideal opportunity to the respondent, particularly where they have been given permission not to attend work to prepare a response.

Related Insights

• Workplace investigations refresher 01: Where to begin
• Workplace investigations refresher part 2: Following your framework
• Workplace investigations refresher part 3: legal professional privilege and workplace investigation reports
• Workplace investigations refresher part 4: Waiving LPP over workplace investigation reports
• Workplace investigations refresher part 5: Maintaining legal professional privilege over workplace investigation reports
• Workplace investigations refresher part 6: drafting allegations
• Workplace investigations refresher part 7: Procedural fairness: putting allegations to a person for response
• Workplace investigations refresher part 8: Participants in workplace investigations – witnesses