Within ‘Spitting Distance’ of a Fair Investigation?

Most workplace investigators operate fairly and thoroughly, producing high quality reports following each investigation. Yet oversights do occur – and some investigators have been known to miss vital clues or pieces of the workplace puzzle.Similarly, even though all essential material might be uncovered during an investigation, it still might not be accurately incorporated into the final report.

The latter problem clearly arose in the November 2016 case of Hedges v Wakefield Regional Council, where an external investigator failed to include essential material in the report. The outcome was a finding by Commissioner McMahon that the dismissal of the worker by the council was unfair in the circumstances. Reinstatement and payment of lost wages were ordered.

The facts of the case

Two workers for the Wakefield Regional Council became engaged in an altercation, one of these being general hand Kieran Hedges. An unfortunate aspect of this event was that the applicant spat at his co-worker. This fact was included in the investigator’s report with an indication that this amounted to a criminal offence. The employer consequently made the decision to dismiss Mr Hedges.

Interestingly however, it was revealed at the Fair Work Commission (FWC) that a crucial act occurring prior to the spitting had been played down in the investigator’s report.

Specifically, Mr Hedges’ co-worker had first flicked a lit cigarette directly at him. Mr Hedges then reacted angrily by spitting back. In the actual report, the cigarette incident was played down as merely involving a cigarette being directed at the dirt somewhere in the applicant’s vicinity. Further, the co-worker was himself disciplined by the employer – a fact that was also not included in the investigation report.

Omitted information

Commissioner McMahon noted that the newly-presented information made a significant difference to the matters in question. He states: "So on the one hand the report raises the fact that spitting is a criminal offence and an assault but no mention is made that flicking a cigarette at somebody could also be deemed a criminal offence and an assault as well…it is unfortunate that this fact was not provided in the report."

The commissioner went on to conclude that the overall complexion of the report in contrast to later-revealed facts“cast grave doubts” upon the entire investigation and the resultant dismissal of Mr Hedges. The FWC accordingly ordered reinstatement and the reimbursement of wages lost.

Independent and unbiased

The matter of Hedges v Wakefield Regional Council brings into sharp focus the need for employers to facilitate a comprehensive and appropriate workplace investigation.

In the Hedges case, an external law firm had been brought in to investigate – yet even in the face of such seemingly expert advice, quite essential information had been detrimentally excluded from the report.

Workplace investigations must necessarily proceed in a careful and even-handed manner. As part of this, it is far from satisfactory to concentrate upon facts that might favour the employer’s position. In Hedges, the worker had been immediately dismissed by the employer for spitting. Yet, as was seen, the failure of the investigator to include other relevant information in the report cast doubt upon the entire process.

Sourcing the right workplace investigator

In selecting a workplace investigator, employers have several variables to consider. The investigator might be internal or external, depending upon the nature and extent of the issues under investigation.

In both cases, the question of objectivity must be addressed – can the investigator remain sufficiently impartial during the carriage of the task? Further, the methods of investigation must be tailored to the particular witnesses in question. Techniques applicable in one situation might well be inappropriate for another. Very importantly, the final investigative outcome – the report – must reflect accurately and fairly the entire situation under examination.

It is a balancing act that can have serious consequences in future proceedings unless your workplace investigator meets all necessary standards of professionalism, experience and objectivity. 

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