Workplace investigations are a complex and often difficult process. It is vital that employers execute investigations in a manner that is fair to all involved.
If workplace investigations are not conducted correctly it can lead to unfair dismissal claims. This article will address how unfair dismissal can arise out of inadequate investigations.
There are many reasons why an investigation may be conducted in the workplace. Most commonly, an investigation will be required to resolve a conflict or complaint, to comply with workplace policy and commitments or to comply with statutory obligations.
An unfair dismissal claim will arise and may be successful, whereas an investigation has not been completed in a way that is fair and just.
A flaw in the investigative process, depending on the seriousness of it, can allow Fair Work Australia (FWA) to award employees damages for unfair dismissal. The cases below demonstrate how flaws in the investigative process led to unfair dismissal claims.
The basis for the investigation is unclear or cannot be supported by evidence
In Narwal v Aldi Food Stores Limited  FWA 2056, it was found that there was no real evidence that supported the decision to terminate the employee. Mr Nawal was dismissed after he took goods from the store he managed without paying. Mr Nawal had forgotten his wallet and had suspended the sale to pay the price when he was next at work.
Mr Nawal paid for the goods immediately after he was alerted by Aldi Food Stores Limited (Aldi) to do so.
FWA found there was no basis for dismissal, and that Aldi could not satisfy a basic level of proof that Mr Nawal had acted dishonestly. FWA ordered that Aldi pay Mr Narwani 12 weeks pay.
Evidence is not evaluated properly or substantial enough to support the decision
In Lambley v DP World Sydney Limited  FWA 1250, the evidence used in the investigation was not strong enough to support the outcome of the investigation. FWA found that there was a gross breach of procedural fairness; the evidence used in the investigation was suspicious and there was a possibility that it been manipulated by employees.
FWA found that during the investigation Mr Lambley’s account of events were not taken into consideration, and this information could have changed the outcome of the investigation considerably. FWA found that Mr Lambley had been unfairly dismissed and ordered that he be reinstated to his previous position.
The investigation lacked clear communication
In Francis v Kalgoorlie Consolidated Gold Mines Pty Limited trading as KCGM  FWA 5472, Mr Francis did not get an opportunity to respond to allegations or the outcome of the investigation. Mr Francis was involved and responsible for a serious safety incident. FWA found that the actions of Mr Francis warranted termination. However, the investigations that lead to the decision were fatally deficient.
Two of the three reasons that KCGM relied upon when terminating Mr Francis were not entirely correct. If Mr Francis had been given an opportunity to respond to the allegations it may have provided for a different outcome. Mr Francis was not advised of the reasons of termination and again had no opportunity to respond. Further to this, KCGM did not take into account the length of Mr Francis employment or previous good work record.
FWA found that Mr Francis’ dismissal was harsh and unjust and Mr Francis was awarded damages.
These cases demonstrate how overlooking fundamental parts of an investigation, insubstantial evidence, poor evaluation of evidence and lack of communication led to unfair dismissal.
Unfair dismissal is a substantial risk that can arise out of an inadequate investigation. However, it is not the only risk. There are a number of risks that are associated with an inadequate investigation. These are:
- Retaliatory complaints;
- Breach of contract claims;
- Workplace Health and Safety claims;
- Stress related injuries and Workers Compensation claims;
- General feeling of unhappiness and frustration in the workplace; and
- Loss of confidence in management.
By conducting a well structured investigation unfair dismissal and other risks associated with workplace investigations can be substantially minimised.
Having a plan or process to implement if required, allows for a more efficient investigation.
Outlined below are basic recommendations that may assist employers in the investigative process:
- Analyse and plan the investigation.
- Identify the purpose of the investigation.
- Be organised and thorough when gathering evidence.
- Organise who will be interviewed and in what order.
- Explain the importance and consequences of a breach of confidentiality to interviewees.
- Record all statements.
- Carefully review and evaluate all evidence
- Evaluate the relevance, substance and validity of evidence; and
- Decide whether the evidence is substantial enough to make a decision.
- Make a decision.
- Once the evidence is gathered and a decision is made it needs to be communicated to all relevant parties; and
- Give the respondent a period of time in which they have to respond to the claims or proposed penalty.
Employers can better equip themselves with the tools to conduct a fair and just investigation, and significantly reduce legal risk.
By conducting an investigation in a structured and correct manner, it will provide a defence to any actions that may arise against the process, findings and outcomes of the investigation. The more time spent conducting an appropriate investigation is less time spent defending a claim for unfair dismissal.