Workplace Investigations –
Top 5 keys to success
National Local Government
Human Resources Conference
Grevis Beard, Worklogic
WORKPLACE INVESTIGATIONS:
HOW DO YOU RESPOND ?
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WHAT WE WILL COVER TODAY…
 Triage first, then act: ‘Why is this investigation
necessary?’
 Clearly and accurately identify what to investigate
 Appoint the appropriate investigator
 Deal properly with ‘scope creep’
 Conduct the investigation in a fair and reliable way
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WHY IS THIS INVESTIGATION
NECESSARY ?
• Where the alleged actions may breach policy
A question: Do your policies incorporate all the required
legal standards of workplace behaviour?
• Where serious disciplinary action will arise if breach
is found proven…
• Where you need an undisputed, objective, factual
basis for disciplinary action
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WHY IS THIS INVESTIGATION
NECESSARY ? (cont)
• When your policy, relevant contract or EBA
requires that you investigate in this situation.
• Where allegations are so toxic, serious or
widespread that no other approach is viable
• Governance/compliance/legal risks
• Other? e.g. (pre-empting reputational risk…)
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POLICY OR CONTRACTUAL
REQUIREMENTS: A CASE EXAMPLE
Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC
177
After a 12 day tour, Ms Romero, an Officer on
a supply ship, Far Swan, emailed HR, alleging
bullying by her Captain…
What was in this email….?
Ms Romero’s email:
“[Captain Martin’s] inappropriate behaviour
needs to change but this is a matter for Farstad
management to address. My intention is to
continue my professional development through
study and return to sea to what has been up
until now, a productive and happy working
environment with Farstad”.
WRONG DECISION !
AND A POLICY BREACH TOO…
 Undertaking the formal investigation was in
itself a breach of the Workplace Behaviour
Policy.
Why ?
AND A POLICY BREACH TOO…
 The Policy required Ms Romero to
actually nominate a particular course of
action under the Policy (either informal
or formal), which she had not done.
AND A POLICY BREACH …(CONT)
Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177
 The email should not have be considered
as a ‘formal complaint’ under its Workplace
Behaviour/Grievance Policy.
 It did not refer to that Policy, made no
reference to a ‘formal complaint’ and did
not contain details of the complaint.
AND A POLICY BREACH …(CONT)
Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177
 The breach of policy also amounted to a
breach of Ms Romero’s employment
contract.
 This is because the policy
 formed part of the contract of employment
AND A POLICY BREACH …(CONT)
Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177
 The policy was not aspirational or
directive, but rather a contractual
promise.
PARTICULAR TIPS…
• What does your policy actually require?
• Start thinking now, about the postinvestigation tool/s you may also need…
• Make sure you are acting consistently
regarding similar situations…
• Is there any danger of any perception of
adverse action? Document and communicate.
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CLEARLY AND ACCURATELY IDENTIFY
WHAT TO INVESTIGATE
Factually describe actions, omissions or words:
 Who? What? Where? When? How often?
Be organised in chronological (or rational) order
Number each allegation distinctly
Include dates or duration, so the event is clearly
identifiable
Omit material not capable of being proven, or not
relevant, or indeed inflammatory !
UNCLEAR ALLEGATIONS: A CASE
EXAMPLE
Bann v Sunshine Coast Newspaper Company Pty
Ltd [2003] AIRC 915
 15 vague allegations of inappropriate behaviour
by the respondent manager
 The investigation was
fundamentally flawed
PARTICULAR TIPS…
• Engage with the “letter of complaint”
• Clarify ambiguous words or phrases
• Do the allegations reflect the language set
out in your policies?
• Use the active tense (c.f. passive tense)
Again, a question: Once it is identified, should it
all proceed to investigation ?
IDENTIFY AN
APPROPRIATE INVESTIGATOR
Consider practical, strategic, risk implications. The investigator
MUST be, and be seen to be, impartial by all parties, and so
cannot be:
 A witness who will need to give evidence
 A friend or close colleague of one of the parties
 Someone who may benefit in any way from the outcome of
the investigation
 Someone who previously disciplined one of the parties
IDENTIFY AN
APPROPRIATE INVESTIGATOR (cont)
The investigator must:
 have the time to complete the investigation in
speedy manner
 have the skill and knowledge to deal with both:
• The investigation process, and,
• The specific issues in dispute (e.g. fraud,
discrimination, sexual harassment)
PARTICULAR TIPS…
Consider:
• The degree of reputational risk (will this process
be challenged: where, and by whom ?
External agencies, courts, tribunals?)
• Whether legal privilege may be helpful
• The seniority of parties vs. investigator
WHO WILL INVESTIGATE:
A CASE EXAMPLE
Keiko Adachi v Qantas Airways Limited [2014] FWC 518 (10 February
2014)
 An investigation into an alleged assault…but was it a tussle
or an assault for the medical certificate ?
 12 witnesses versus 1 witness…!
 The investigator had a “high personal and professional
regard” for the witness
 The investigator was unable to believe that this
employee’s narrative was “anything but totally credible”.
DEAL PROPERLY WITH
“SCOPE CREEP”
If new allegations are raised:
• You need enough information to be sure
it is not relevant to this investigation.
• If out of scope, close out conversation
• Refer substantive matters back to the
person determining scope (if that is not
you)
PARTICULAR TIPS…
• New allegations MUST be put to the
respondent with adequate time to consider
• Respondent may think you are collecting info
against them i.e. are biased – be clear about
what and why you are asking questions
• Is it “similar fact” evidence? Be open about
what evidence you are considering.
“SCOPE CREEP”: A CASE EXAMPLE
Boal v BHP Coal Pty Ltd [2014]; Faulkner v BHP Coal Pty Ltd
[2014]
• Both employees responded to allegations
contained in a Show Cause letter
• Were not given adequate opportunity
to respond to further evidence that was
later relied upon in dismissing them.
“SCOPE CREEP”: A CASE EXAMPLE
(cont)
Re Mr Boal: evidence of mobile phone records from other days
were considered.
Re Mr Faulkner: evidence of the employee using the mobile
phone (c.f. having it), operating the vehicle at the time of using
his phone, and, evidence of past inappropriate conduct) was
considered.
In both cases…never put to the respondents for comment…
The evidence in question…
“Zachary J...your (sic) lucky I’m here to get your
truck out of the bog you got it into.”
CONDUCT THE INVESTIGATION
IN A FAIR AND RELIABLE WAY
 Provide specific allegations to respondent for
response, and advise about outcomes
 Provide relevant evidence for respondent to
comment on
 Act impartially and promptly during the entire
investigation
CONDUCT THE INVESTIGATION
IN A FAIR AND RELIABLE WAY (cont)
Ensure confidentiality
Make findings on the evidence collected, on
the balance of probabilities
PARTICULAR TIPS…
• Confirm confidentiality with all participants
• Make sure what you ask, and say, at interview
is clear and relevant
• Make sure you respond to “off the record”
issues
• Provide consistency of process to all
participants
UNRELIABLE INVESTIGATIONS:
A CASE EXAMPLE
Oui v Townsville Aboriginal & Torres Strait Islander
Corporation Health Services [2012] FWA 2713
• The investigation report did not state who was
interviewed
• It did not state what evidence supported the
findings, no understanding of how the conclusions
were reached
THANK YOU
Any questions ?
Please do email enquiries@worklogic.com.au or
investigations@worklogic.com.au if you would like to receive
e-investigation insights, to accompany our book: “Effective
Workplace Investigations”, or, to receive our newsletters.
CONTACT DETAILS
Grevis Beard
Director, Worklogic
gbeard@worklogic.com.au
(03) 9981 6555 / 0433 590 360
Please do contact me to discuss any queries you
may have from the presentation today