There is a high likelihood that every employer will have to deal with action - or at least the threat of action - involving the Fair Work Commission (FWC).
Let's take a look at the role of the FWC, and the importance of a defensible investigation report in the event an employee lodges a claim.
The FWC is Australia's national workplace relations tribunal. It deals with a variety of workplace matters, such as salary disputes, enforcing agreements, reviewing workplace conditions, and making decisions on terminations.
As part of making such determinations, the FWC has the power to impose an outcome on an employer and/or an employee. For example, if a person is considered to have been unfairly dismissed, the FWC may order that their employment is reinstated, or that compensation is payable.
However, the FWC is not a court, and as such, its decisions can be overruled by a formal court judgement.
Applications to the FWC can be lodged online or by mail. Except in certain circumstances where significant financial hardship can be demonstrated, a filing fee ($73.20 at the time of writing) is payable with the application.
If a former employee wishes to lodge an application relating to unfair dismissal, it must be received by the FWC within 21 days of the official date of the dismissal.
A number of different matters can be dealt with by the FWC. However, up to 40% of all applications heard by the tribunal involve claims for unfair dismissal. Other commonly heard applications include those seeking:
Although the exact process differs slightly depending on the nature of the claim, the FWC may elect to:
It is essential to the FWC process, that all matters are dealt with impartially and as swiftly as reasonably possible.
The involvement of the FWC generally means that, at some point, an employer will be required to provide evidence. Often, the best evidence available will be a properly completed investigation report.
The existence of a robust investigation report may prevent a claimant from pursuing an application to the FWC in the first place. The FWC is also likely to look favourably on an employer who has engaged an unbiased external investigator to prepare a detailed report.
Perhaps most crucially, the FWC will make an assessment on whether an employer's findings and actions are defensible. This will include close examination as to whether the employer can be demonstrated to have shown procedural fairness when dealing with an investigation.
Dealing with matters brought before the FWC can be a stressful time for employers. WISE are proud that none of our decisions have been successfully challenged in the FWC. If you are looking for assistance to navigate the complex issues of workplace investigations, contact us! Alternatively, download our ultimate toolkit, which will give you confidence in making your workplace investigations procedurally fair, cost effective and consistent.
WISE Workplace is a multidisciplinary organisation specialising in the investigation of workplace behaviour. We investigate matters of corporate and professional misconduct, resolve conflict through mediation and minimise the impact of inappropriate behaviour through our whistleblower services.
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