Jennifer Wyborn
Partner •
Canberra
Workplace investigations refresher part 2: Following your framework
Having a clear and detailed policy and applying it in practice will be critical to preserving the integrity of the outcome of any workplace investigation.
So, you have decided to conduct a workplace investigation and have formed a view about who will conduct that investigation, what next?
The next step is to plan the structure of your investigation with reference to the relevant framework and/or legal instruments.
Mapping the task – identifying your frameworks and applicable legal instruments
Workplace investigations are usually conducted under a legal or other procedural framework. Some frameworks are specific to certain workplaces, while others apply to industries as a whole. For example, in the Commonwealth Australian Public Service (APS) context, a workplace investigation may be conducted under the APS Code of Conduct set out in section 13 of the Public Service Act 1999 (Cth) (PS Act), or in response to a disclosure made under the Public Interest Disclosure Act 2013 (Cth) (PID Act). In the non-APS context, an investigation may be conducted under a workplace's enterprise agreement or acceptable behaviour policy.
Regardless of the specific framework, to plan an investigation you will need to:
- identify the facts in issue in an objective way. For a Code investigation, identify the particular behaviour that may have breached an element of the Code. In the PID Act context, identify the particular behaviour that may amount to disclosable conduct;
- refer to the relevant framework and determine which elements you will be using to assess the facts in issue. For a Code investigation, this would involve identifying the particular element of the Code, and in the PID Act context the particular elements of disclosable conduct. This will help you understand the particular evidence that you will need to establish the facts in issue to the relevant threshold;
- refer to any policy/guidance material and ensure that additional requirements are factored in. In the APS context, all Agencies are required to have procedures relating to Code and PID Act investigations which will assist with planning things like evidence gathering, the time in which the investigation must be completed, and communication with the respondent and witnesses.
The benefits of a policy
As you plan your investigation in further detail, having a policy that clearly sets out how you will investigate suspected misconduct at the workplace can provide a helpful framework for you and your employees to understand how these situations will be managed. If you already have a policy, making sure that you apply this policy in practice, is an essential part of conducting any workplace investigation.
The case of Romero v Farstad Shipping (Indian Pacific) Pty Ltd demonstrates the importance of developing formal and transparent processes, and making sure the appropriate processes for the particular situation are followed in practice.
In this case, Ms Lisa Romero, an employee of Farstad Shipping Pty Ltd, made an informal bullying and harassment complaint via email about the conduct of a fellow employee, Captain Martin, however she did not request a formal investigation.
Farstad had a number of workplace policies in place about appropriate conduct in the workplace, including a Workplace Harassment and Discrimination Policy. This Policy also provided procedures for making a complaint where an individual considered these expectations had not been met, and the process around making a formal, or informal, complaint. In particular, the Policy specifically stated that an employee needed to elect to pursue a formal complaint. Nevertheless, without consulting Ms Romero, Farstad treated her complaint as a formal complaint and launched a formal investigation.
As part of this investigation, Captain Martin raised cross-allegations about Ms Romero's competence. In response, Farstad enlarged the scope of the formal investigation to also consider Ms Romero's competence.
Ms Romero lodged a claim in the Federal Court, arguing that the Policy formed part of her contract of employment and that Farstad's breach of the Policy amounted to a breach or repudiation of her contract. She also claimed damages for breach of the contractual terms as set out in the Policy.
The primary judge, Justice Marshall, held that the Policy was not incorporated into Ms Romero's employment contract and even if it had been he was not satisfied that Farstad had breached the Policy.
On appeal, the Full Court found that the Policy was incorporated into Ms Romero's employment contract. The Full Court further found that Farstad did not comply with its own Policy by:
- treating Ms Romero's complaint in a formal manner when she had not elected to pursue a formal complaint;
- failing to "carefully and systematically investigate" Ms Romero's complaint, including by failing to put the allegations to Captain Martin or interview all relevant witnesses;
- failing to properly document the investigation as required by the Policy; and
- investigating the allegations about Ms Romero's competence within the same investigation.
Key lessons – how to follow through
How can you avoid these procedural mistakes?
Having a clear and detailed policy and applying it in practice will be critical to preserving the integrity of the outcome of any workplace investigation, by assisting you to:
- plan your investigation, including considering what framework might apply, the evidence you'll need, who you'll need to talk to (if anyone), and what you already know;
- assess the situation, including whether this is the first time something like this has happened, what the outcome might be, and depending on that potential outcome, what are the risks you should be aware of before you get started;
- ensure procedural fairness, including by setting out clear processes to follow to make sure the employee(s) under investigation are given an opportunity to respond, and have their side of the story taken into account, before any decision about their employment is made; and
- investigate thoroughly, including by making sure that no stone goes unturned, and that you do not prematurely jump to conclusions that aren't supported by the facts.
However, policies should also not be so prescriptive that they impact an employer's flexibility to address a complaint in a way which is appropriate in the circumstances.
It will also help you avoid:
- acting out of emotion or confusion, which may lead you to make an ill-judged decision before you have all the information;
- failing to spot the risks of an action you might be about to take, before it is too late; or
- applying processes haphazardly or in an unpredictable way, leading to inconsistent outcomes between staff, resulting in poor morale and/or legal action.
In most cases, the key goal of a workplace investigation will be to determine whether the alleged misconduct is more likely than not to have occurred. This should be the focus of your investigation and the policies that underpin it, as the answer to this question will form the bedrock of any disciplinary action you as an employer may wish to take against an employee.
However, it is not just enough to simply have a policy which you set and forget. Instead, you have to actually apply the policy. Further, if you are going to apply a policy, you need to do this every time you conduct an investigation.
Related Insights
Get in touch
Disclaimer
Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.