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We all know there is a clear and important need for procedural fairness, yet our experiences show us that despite the views of the tribunals and the guidelines created by the industrial instruments, an organisations commitment to procedural fairness can be either reinforced or weakened by management actions taken at the time.

“The obligation upon the parties to ensure procedural fairness is not a hollow one and must not be construed as having only technical significance”.. ~ Humphries v Cootamundra Ex-Services & Citizens memorial Club Ltd.

Take for example, the organisation who due to claims made by a complainant that the HR unit was bias, chose to remove themselves from any involvement in the investigation of the alleged matters. This claim was not founded just purely the perception of the complainant. However, the actions of this organisation prevented any challenge to the validity of the findings on this basis and increased the potential for the outcome to be respected by the parties involved.

Consider this in comparison to those who have been tasked to conduct an investigation and due to their own personal biases have not brought an open mind as they have perceived the respondent to be a loyal employee. Failure to have an open mind is breach of the “The rule against bias”, as the investigator is not able to give a balanced and considered assessment of all of the information and evidence.

Failing to correctly notify an employee that they are a respondent to a complaint, along with the details of the allegations that have been raised in advance of any interviews is a common occurrence. Additionally, we have seen managers delegate their authority to others to make these arrangements, however in doing so they have failed to ensure the notification is provided in a correct and proper manner. Any employee who is a respondent to a complaint of potential serious misconduct should be provided with a formal allegation letter in advance that provides sufficient detail allowing them to respond.

Often complaints of alleged serious misconduct are either not investigated or are significantly delayed by line management continuing to revert to informal grievance processes. Compliance with the procedures established by your organisation for the management of grievances is critical to ensuring that complaints are addressed in a timely manner. If it can be proven that due to the employers conduct or their failure to act, there has been an unreasonable delay in seeking to address a matter, then the process can be rendered unfair.

Many organisations carry out preliminary inquiries when they first receive a complaint. This provides an opportunity to talk with employees to explore the feasibility of a matter without all of the procedural steps associated with a full investigation. However, it should be remembered, that a preliminary inquiry should not be used as a means to catch an employee unaware. Once it is established that there is a case to answer then a formal investigation should be triggered.

Suspension of employees during an investigation may not always be necessary and should not be done simply because a decision has been made to investigate. Suspension often creates additional hurdles for organisations when they then need to re-integrate the employee back into the business. However, it is reasonable to consider suspension if you believe there is a high possibility the respondent will recommit the offence being alleged, the evidence may be tampered with or there is a risk to the health and safety of other employees.  Where suspension is necessary it is imperative that regular contact is made with the employee(s) whilst the investigation is ongoing. Ideally this should be done through an appropriate internal manager, not the investigator.

The importance of confidentiality in an investigation should not be overlooked. By maintaining confidentiality trust is built with the parties involved, it avoids the investigator being misled and furthermore it avoids criticism from a tribunal should a matter be contested at a later date. However, despite investigators best efforts to demand confidentiality of participants in investigations, breaches of confidentiality do occur.  Where they arise they should be pursued to maintain the integrity of the process.  Action should be taken by an appropriate internal manager to reinforce confidentiality obligations in an appropriate manner which may involve disciplinary steps.

PEEL HR can provide independent workplace investigation services from simple to complex matters. Additionally we run training for those who may be required to conduct workplace investigations. For more information on our investigation services or upcoming dates and details of our Workplace Investigations program contact us or in the office on: 02 4963 7373