During the course of an investigation there comes a point where you must ensure that the person subject of a complaint is afforded procedural fairness.
Failure to afford an employee Procedural Fairness can result in;
General rules of Procedural Fairness – the rights of the employee
The right to know the nature of the allegation/complaint against them in cases of behaviour issues
The right to know is referenced in the Fair Work Act 2009 – s387 – Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account;
(b) whether the person was notified of that reason
The right to respond to the allegation/complaint or performance issue
The right be heard or to respond to an allegation/complaint or performance issue is referenced in the Fair Work Act 2009 – s387 – Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
The excerpt above is from the AWPTI Procedural fairness manual – http://awpti.com.au/procedural-fairness-manual/
I always recommend providing the allegations in writing, why?
In the case of Mr Michael Fitzpatrick v Bunnings Group Ltd T/A Bunnings
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
If you are going to take the sensible (in my opinion) course it is important that your letter of allegation is complete and contains carefully worded allegations. For full details of the content of a letter and the construction of allegations please see the AWPTI Procedural fairness manual – http://awpti.com.au/procedural-fairness-manual/
Your allegations must contain enough information to allow the person subject of the complaint to respond, ideally including the time, date and place where the behaviour or misconduct took place. The actual behaviour subject of the allegation, The person/s subject of the behaviour (victim) and what policy the behaviour breached.
AWPTI can assist to take the headache of workplace investigations from you. When we undertake an investigation we draft and provide to you all the letters to parties including comprehensive and legally compliant letters of allegation.
Should you wish to do it yourself we have a comprehensive Investigation Document Toolbox available at – http://awpti.com.au/investigation-toolbox/ and other products to assist HR professional and managers at – http://awpti.com.au/hr-products/
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
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