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From our experience as workplace investigators, we would like to share our thoughts on a few ‘curveballs’ which could arise when you are conducting an investigation…

Curveball 1: What if an investigation party is reluctant to participate in a formal investigation? Worse, what if it’s the complainant?

What if a complainant, who was alleging bullying, is reluctant to participate in an investigation as they fear victimisation?  What if the complainant refused to participate in a formal investigation in relation to the concerns they had raised on the basis that if they were victimised as they strongly feared, it would impact their day to day work, their career path and ultimately their mental health. In this case the organisation was aware the employee had a known psychological illness and was faced with the complexities of determining how to deploy their WHS obligations to control the risk of exposing the employee to a known risk to their health and safety if they proceeded with a formal investigation.  It’s a hard decision.  The considerations in this type of case are:

• Is there any independent evidence which would allow an investigation to proceed without the complainant’s involvement?
• Is it possible to proceed with the investigation and protect the complainant from what they fear? What control mechanisms can you put in place to reduce the potential risk to health and safety?
• Is it possible to not conduct a formal investigation but instead put in place measures to eliminate or manage the risk of bullying? Are there other alternate actions which may be appropriate in the circumstances?

Curveball 2: Can I direct an investigation party to attend a medical assessment or to provide a medical clearance.

From time to time investigators will be faced with an employee whose behaviour suggests they may have an underlying medical condition affecting their mental health. These concerns may become apparent to the investigator prior to the investigation or during the investigation and may have the potential to impact on recommendations needing to being made by the investigator.

In Blackadder v Ramsay Butchering Services Pty Limited [2002], Justice Madgwick‘s decision (upheld by the High Court) emphasised that where necessary an employer can require an employee to provide medical evidence attesting to their fitness to undertake duties and where there is a genuine need for it, to also attend a medical examination to confirm their fitness.

But here’s the curveball…. What if the employee provides a medical certificate saying they are fit for duty, can you request additional information? There have been a number of recent cases which provide us with some insight on this.

In Columbine v the GEO Group Australia [2014] the employee provided a medical certificate and a medical report but failed to provide the employer with the authority for them to directly correspond with her GP. The Fair Work Commission found in the circumstances, in order to fulfil the employers duty of care they needed to ensure there was no risk to the employee or others on the employees return to work and continuing beyond their return to work.  As such, the employer has the ability to not only request medical information which could be from an independent medical practitioner or the employees treating doctor but also has the opportunity to discuss the medical information with the nominated doctor .

In Thompson & IGT (Australia) Pty Limited, the employer requested an employee see two doctors, a general surgeon and a psychiatrist. The employee attended the appointment with the general surgeon who concluded the employee was fit to perform his duties. The employee however refused to attend the psychiatrist appointment, asserting that such an assessment was beyond the bounds of his condition, (namely that it was a physical condition). In considering this matter, Justice Goldberg noted it was a well-established principle that an employer may give an employee a "lawful and reasonable direction" which, if reasonable and relates to the subject matter of employment requires observance. The key consideration  arising from this case is that the request for medical information can be made by an employer provided it is done so on reasonable terms  and it is reasonably necessary in the first instance for the request to have been made.

Such decisions to date reinforce that employers may under common law principles require employees to provide additional medical information or undergo a psychiatric assessment in some circumstances. Namely, where it is necessary for the employer to have available to them all relevant medical information to be able to conduct their business and where it is necessary to ensure the health and safety of all employees under their WHS obligations.

A case to watch out for will be Grant v BHP Coal Pty LTd [2015] FCA 329. This case is being heard on appeal and once concluded will provide us with further clarity around whether an employer can direct an employee to be examined by the employers nominated doctor. Keeping a watchful eye on the outcome of this decision will be important as it may amend the current state of play.

Complex issues such as these will always present as challenges to investigators. PEEL is aware that at an industry level Workplace Investigations guidelines are being developed for Local Government. Such guidelines will no doubt greatly assist staff charged with the job of conducting investigations.

Where you require additional support or expertise in Workplace Investigations, from investigator’s with Local Government expertise, contact PEEL HR on 1300 665 1441300 665 144 or at email@peelhr.com.au or Check out our website at www.peelhr.com.au