Unfair dismissal & the role of workplace investigations

What role does the investigator and the investigation play in ensuring that a dismissal is not unfair? It is important that employers and investigators get it right the first time every time.

When an employee submits an unfair dismissal application after being terminated from their employment, the Fair Work Commission looks at 3 criteria; was the dismissal Harsh, unjust and/or unfair

HARSHMatters taken into account when determining if a dismissal was harsh or not include (but are not limited to):

  • Whether or not the punishment fitted the crime
  • The individual circumstances of the employee
  • Whether other options were more suitable

UNJUST: Whether or not the employer had a valid reason for dismissing the employee.

UNFAIR: Whether or not the employee was treated fairly and the dismissal was handled in a reasonable manner including:

  • Affording the employee procedural fairness
  • Ensuring that a timely and professional investigation is carried out
  • Ensuring that the employer has policies in place outlining workplace expectations
  • Ensuring that the employer has conducted training outlining workplace expectations

The role of the investigator and the investigation is to gather evidence and make findings and recommendations.

The job of the investigator is to provide the employer with the VALID reason for dismissal if and only if the evidence supports the recommendation.

It is not the job of the investigator to decide the fate of the employee however a recommendation can be worded, “Based in the findings of the investigation it is considered that there sufficient evidence to support a disciplinary outcome up to and including dismissal.”

The final outcome is a matter for the employer. However should the matter go to the Commission the investigator must be able to stand behind their recommendation to satisfy the requirement that the dismissal is not UNJUST.

If there is insufficient evidence to support a disciplinary outcome the investigator must advise the employer of that finding.

The investigator MUST ensure that during the investigation the employee is afforded procedural fairness to ensure that the dismissal is not UNFAIR.

This includes;
Ensuring that the employee is provided with sufficient details of the alleged misconduct (the allegation/s) to allow them to respond.  This is usually done by way of a letter of allegation – This is known as the right to know.

Ensuring that the employee is provided with opportunity to respond to the allegation, this includes providing the employee with sufficient time to consider their response – This is known as the right to be heard.

Ensuring that the decision as to whether the allegation is substantiated or otherwise is based on the evidence only. Personal feelings, past dealing, reputation and other matters not related to the allegation should not be considered – This is known as the right to have the determination of the allegation/s based on the evidence.

Ensuring that the employee is provided with opportunity to have a support person present during any interview/s that could result in a disciplinary outcome. On a personal note I offer a support person to all parties involved in workplace investigation interviews, complainants, witnesses and respondents.

The investigator must also ensure that investigation is carried out is carried out in a timely and professional manner.

With regard to other elements of UNFAIR such as policy and training , these are matters for the employer as are the elements of HARSH.

Unfair dismissal workplace investigations – How to get it right

At the outset decide, should the matter be handled internally or should I get an external expert?

If you are going to handle the matter internally, you should ask the following questions, Do you have someone;

  • With the necessary expertise and experience to conduct an investigation
  • With a solid experience conducting investigative interviews?
  • With full understanding procedural fairness and the rules of evidence?
  • With full understanding of current legislation as it relates to workplace complaints such as bullying, harassment, sexual harassment and discrimination?
  • With experience writing reports that will withstand the scrutiny of an industrial commission or the Fair Work Commission?
  • With the time to handle this internally in a professional manner?
  • Who wants the stress of handling this internally?

If the answers to any of these questions is NO, Australian Workplace Training & Investigation can assist – https://awpti.com.au/workplace-investigations/

If you are going to manage the matter internally it is recommended that you are trained in the investigation process.

All of my Workplace Investigation courses (1, 2 or 3 days) are now ‘Live by Request’, which means I will run the courses via Zoom at a time & date to suit your requirements. The course can be run over full days or 1/2 days & can be run on consecutive days or whatever fits in with your time timetable.

Contact me (phil@awpti.com.au) if you would like to upskill yourself, your HR professionals, managers & supervisors to understand;
* Investigations in the workplace & what is the workplace in 2021
* Why investigate
* Bullying, harassment, sexual harassment & discrimination
* Misuse of resources, email & I.T
* Complaints against managers & Reasonable Management Action
* Investigation fundamentals, Procedural Fairness & Evidence
* Planning investigations & Complaint analysis
* Unfair dismissal & the role of the investigation
* Interview planning
* Investigative interview technique & types of questions to ask
* Planning & interviewing complainants, witnesses & respondents
* Drafting legally complaint allegations
* Analysing & evaluating evidence
* Report writing

The courses provides participants with the opportunity to discuss a number of case studies and to work through an investigation based on a real world scenario from receipt of the complaint to final report including interviewing our facilitators as complainants, witnesses & alleged perpetrators.

Details of our courses with prices for individuals (yes we will run a course for 1 person) – https://awpti.com.au/live-by-request-training-courses/

For organisations or businesses who wish to have 2 or more employees attend we have a flat rate with no limit on participants contact me for details – phil@awpti.com.au

Participants of the 2 or 3 day course also receive my complete Workplace Investigation Document Toolbox (50 docs, manuals and videos) valued at $1200.00 included in the cost of the course – https://awpti.com.au/workplace-investigation-document-toolbox/

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