Workplace investigations are a critical tool for resolving disputes and maintaining compliance with workplace laws. However, when improperly conducted, investigations can backfire, attracting criticism from the Fair Work Commission (FWC). Such criticism often centres on procedural shortcomings that undermine fairness and integrity. See case study – bullying and harassment
The Role of the FWC in Workplace Investigations
The FWC evaluates the fairness of investigations, particularly in unfair dismissal cases. It examines whether an investigation adhered to procedural fairness principles, such as ensuring impartiality, providing an opportunity for the respondent to respond to allegations, and avoiding undue delays.
One notable example is Keech v Murrays Australia Pty Ltd [2018] FWC 1245, where the FWC criticised an HR investigation for being biased and inadequate in collecting relevant evidence.
Key Case Study: Keech v Murrays Australia Pty Ltd [2018] FWC 1245
In this case, the employer dismissed Mr Keech for allegedly using inappropriate language toward a colleague. However, the FWC found that the investigation conducted by HR was flawed due to:
- Bias in Evidence Collection: HR failed to interview critical witnesses who could have provided exculpatory evidence. This omission created a perception of bias.
- Inadequate Documentation: The investigation lacked thorough records of discussions and decisions, making it difficult for the FWC to verify the basis of the findings.
- Failure to Provide Allegations in Full: Mr Keech was not presented with all allegations against him, denying him the opportunity to fully respond.
The FWC ruled that the dismissal was unfair, criticising the investigation as a significant contributing factor.
Common Mistakes in HR Investigations
- Lack of Impartiality: Investigators should avoid preconceived notions or conflicts of interest that might compromise their objectivity.
- Insufficient Evidence Gathering: A failure to interview key witnesses or review critical documents can lead to incomplete findings.
- Inadequate Communication: Respondents must be informed of all allegations and provided with an opportunity to respond.
- Failure to Follow Procedures: Deviating from established workplace policies or procedures can invalidate an investigation’s findings.
Lessons for Employers
Employers can learn valuable lessons from cases like Keech v Murrays Australia Pty Ltd to avoid FWC criticism:
- Train HR Staff: Ensure HR professionals conducting investigations are well-trained in procedural fairness and evidence collection.
- Follow Clear Policies: Adhere strictly to internal investigation procedures and legal requirements.
- Maintain Transparency: Keep thorough records and ensure respondents are fully informed throughout the process.
- Engage Independent Investigators: In complex or high-stakes cases, consider appointing an external investigator to ensure impartiality.
Conclusion
The FWC’s criticism of poorly conducted investigations serves as a stark reminder for employers. A flawed investigation not only undermines trust but also exposes organisations to legal risks. By adhering to procedural fairness, maintaining impartiality, and ensuring thorough documentation, employers can safeguard the integrity of their workplace investigations.
For tailored advice or training on workplace investigations, seek assistance from experienced HR consultants or legal professionals.