It is important to understand that a workplace investigation may be scrutinised by a court in the case of a complainant suing in negligence for a breach of a duty of care in a bullying or sexual harassment matter. For example the case of Mathews v Winslow Constructors where an award of 1.3 million dollars was ordered or by the Fair Work Tribunal in the case of an unfair dismissal application is made by a terminated employee.

A crucial part of any investigation are the workplace investigation documents including;

  • Letters to the complainant and witnesses
  • Letters of allegation to respondents
  • Risk assessments
  • Witness statement
  • Interim reports
  • Final reports

It is essential that firstly these documents actually exist and secondly that they are compliant.

In the case of Michael Fitzpatrick v Bunnings Group Ltd

The commissioner found (at 85)
In addition to not providing Mr Fitzpatrick with the basis of the allegation, in a written form, the Commission was not provided with a written record of the disciplinary investigation. The Commission was not provided with a written record of what actions were taken against Mr Fitzpatrick or provided with an adequate written record of the reasons why he was dismissed for serious misconduct. The only evidence provided to the Commission was a very abridged record of a disciplinary discussion/meeting on 2 October 2013 at the time of Mr Fitzpatrick’s dismissal

and at (91)
the Employer should have reduced to writing the allegations regarding Mr Fitzpatrick’s conduct which could lead to his dismissal. This would have enabled Mr Fitzpatrick to respond to the specific allegations and supporting evidence, rather than Mr Vitler and Mr Cherry making a choice regarding the “facts” based on the initial statement

The commission found in favour of Mr Fitzpatrick
Link to case here - Fitzpatrick v Bunnings Group Ltd T/A Bunnings

Drafting letters, especially letters of allegation is a complex task as there are important components that must be included to ensure legal compliance.

Take the headache out of ensuring that you have the right workplace investigation documents with the AWPTI Investigation Document Toolbox - http://awpti.com.au/investigation-toolbox/

The toolbox also contains;

  • Step by step workplace investigation instructions (20 documents) (pdf)
  • Complaint Analysis Chart (pdf)
  • Investigation Flow Chart (pdf)
  • Investigation Interview Manual (pdf)
  • Template Risk Assessment form (Word doc)
  • Template investigation plans x 2 (Word doc)
  • Template letter to the complainant (Word doc)
  • Template letter to the witnesses (Word doc)
  • Template initial letter to the respondent (Word doc)
  • Template letter of allegation to the respondent (Word doc)
  • Template complainant interview guide/script (Word doc)
  • Template witness interview guide/script (Word doc)
  • Template respondent interview guide/script (Word doc)
  • Sample witness statement (Word doc)
  • Sample interim report (Word doc)
  • Sample final investigation report (Word doc)

AWPTI Investigation Document Toolbox - http://awpti.com.au/investigation-toolbox/

AWPTI - workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

www.awpti.com.au
http://awpti.com.au/investigations/
http://awpti.com.au/training/

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