For Employers: Effective Workplace Investigations for Dealing with Employee Misconduct

Employment Law: 18 March 2019

A recent case heard before the Fair Work Commission (FWC) Construction. Forestry, Mining and Energy Union v MSS Strategic Medical Pty Ltd and another [2015] FWC 6937 (13 November 2015) has stressed the importance of conducting employer based workplace investigations fairly.

Case Background

In this case the Fair Work Commissioner ordered that a final warning be removed from an employee's (Applicants) record for alleged misconduct breaching the company policy. The Applicant, (an emergency services officer) had worked at a power station in Victoria's Latrobe Valley since the early 1990s. She had an unblemished performance record until the past 12 months when the company began raising "trivial" issues about her performance or behavior, investigating the same issues several times, failing to accept reasonable explanations and introducing new allegations against her without notice or without providing a reasonable opportunity for her to respond.

The company then gave the Applicant a written warning on the basis of eight issues which, her union said, had previously been investigated without recourse to disciplinary action.

These included allegedly slamming a fridge door and being unnecessarily aggressive during a toolbox meeting.

The Fair Work Commission said the company's actions had had a "compounding impact" on the worker, who had become anxious and stressed and was now being treated by a psychologist and taking prescribed medication.

How does it affect you?

Employers should avoid "use a sledgehammer to crack a nut", relying on workplace policies in a disproportionate manner.

Workplace investigations should be used by employers after considering all options available to them in determining an employee's fate for things such as misconduct. This includes whether an investigation is even required, or whether alternative, less punitive, measures could be adopted. It is important for employers to step back and keep an objective mindset in approaching these often highly emotional and tense investigations to ensure natural justice and procedural fairness.

Listed below are some questions employers should ask themselves prior to and throughout the investigative process for misconduct:

Is an investigation even warranted in these circumstances?

CHECK YOUR COMPANY POLICY!!! Having a good understanding of your company policy will aid you in whether or not an investigation is necessary. This could save your company time and money as there is little advantage in pursuing a full-fledged investigation if a breach doesn't breach the company policy!

A common sense approach to dealing with minor misconduct via alternative means can often be achieved through meetings and simple management. Dealing with your statutory obligations and providing constructive feedback to employees (particularly considering performance issues) should often be the first step to dealing with issues head on instead of rushing straight into a workplace investigation.

Other important risks to consider are:

-       The seniority and experience of the employee as well as their credibility

-       If there is money at stake

-       If the company's reputation is a stake

-       If the problem is isolated or widespread

-       If the allegation of misconduct breaks any laws outside the company policy

-       If the employee is highly sensitive, aggressive or litigious

If an investigation is warranted, what type should I adopt?

This will depend on a raft of factors including budget/time constraints and the nature of the allegations. If your matter concerns alleged employee misconduct surrounding an OHS matter also consider your employees obligations to "take reasonable careto themselves and others under sections 24 & 25 of the OHS Act. Use resources commensurate to the nature of the misconduct alleged.

Having decided upon the type of investigation it is appropriate to consider the most appropriate person(s) to undertake the investigation and any meetings with the employee and others involved.

How do I adopt natural justice and procedural fairness into the investigation meeting?

Employers should be fair and impartial in considering all the facts (from both sides of the allegation) before arriving at conclusions.

Generally speaking, natural justice can be incorporated into the investigation meeting by the employer or (decision maker) by adopting the following methods;

-       giving the employee an opportunity to respond to the allegations.

-       (if the allegations are serious or multiple), by giving notice to the employee in writing and allowing them reasonable time to prepare and respond prior to the meeting

-       giving the employee the opportunity to have a support person present at the meeting

-       considering the employee's response prior to arriving to your final decision

-       ensuring the investigation is free from bias

Procedural fairness principles that can be incorporated into an investigation meeting may include following;

-       keeping the matter confidential between the affected parties

-       collecting and considering all relevant evidence

-       conducting the investigation within a reasonable time period

-       allowing the employee under investigation access to any documentation that may affect them - (this doesn't have to include internal communications that don't specifically relate to the matter)

-       communicating the process to all participants of the investigation

What do I do following the investigation?

Following any investigation, and in lieu of any final report, the employer should determine whether or not employee has breached the company policy, code of conduct or any other relevant law outside the workplace. Even if there are no breaches found following an investigation it is still important to have a follow-up conversation with the employee in question. The employer is still within its rights to explain that although no formal disciplinary action will occur, the employer will not ignore the proven conduct. This is particularly so if the nature of the allegations concerns professionalism, which may have a wider impact on the culture of the employer's company. In this type of situation, a verbal warning or a circulated email addressing the issue could help denounce the conduct in question. Rectifying these types of lower-level concerns in their infancy can have a positive effect by improving culture within the workplace, and may alleviate the need for future investigations.

If a material breach of the company policy is found to have occurred the employer will need to determine what consequences should follow. The decision-maker may consult with management and obtain legal advice, as to whether formal disciplinary action should occur.

Most policies give discretion to employers regarding consequences for a breach. Employers should still consider the points raised at point 1 above prior to arriving at a final decision. Disciplinary options may include things such as:

-       a written warning

-       performance management

-       reduction in bonus or exclusion of any other company perks or entitlements (facts        dependent)

-       suspension with or without pay pending further investigation if necessary (facts dependent)

-       redeployment/relocation

-       summary dismissal

Closing Comment

There is no "magic formula" for conducting workplace investigations as they will be dependent on the facts and the seriousness of the situation. It is advisable to have a comprehensive plan for management dealing with situations such as misconduct through your company policy and/or your company's code of conduct. It is important if your company does not have policy dealing with workplace investigations to at least have clauses within your employee's employment agreements that detail the process and the potential outcomes of that process. Careful planning from the outset of a workplace investigation will more often than not save the company time and added stress which can only be a good thing.

Aitken Partners Workplace Law team would be more than happy to assist you or your company in advising on workplace investigations and how they should be conducted. We can also advise on drafting company policies and codes of conduct as well as including any these requirements within