Under the Work Health and Safety Act 2011 (Cth), employers must take all reasonable steps to create a safe workplace for all employees by eliminating or minimising the risk of harm. This obligation extends to properly investigate workplace allegations such as misconduct, bullying, harassment, discrimination and fraud.
How to Conduct a Workplace Investigation
Unfortunately, there is no set formula for conducting a ‘proper’ workplace investigation as it will depend on the facts of each matter. However, as an overarching guide, all workplace investigations should be conducted in a manner consistent with the principles of procedural fairness including that the investigation is fair, impartial, transparent and timely.
Risks of getting it Wrong
Failure to conduct a ‘proper’ workplace investigation may expose an employer to the following claims been made against them:
Bullying and Harassment
Under the Fair Work Act 2009 (Cth), a worker is bullied at work if a person or group of people repeatedly act unreasonably towards them or a group of workers. More and more we are seeing these types of claims been made following a workplace investigation, accusing the employer of singling out the employee and investigating in an unreasonable manner.
Unfair Dismissal
Under the Fair Work Act 2009 (Cth), an employee is considered to have been unfairly dismissed if their dismissal was harsh, unjust or unreasonable. Relevantly, the criteria for assessing whether the dismissal falls within this scope is directly related to the principles of procedural fairness. In other words, conducting a proper workplace investigation is the first step in minimising the risk of a successful unfair dismissal claim.
General Protections
Among other things, a general protections claim can be made when an employee believes they have been treated adversely (e.g. dismissed) because they have made a workplace complaint. To mitigate this risk, it is important to fully document the reasons for any dismissal and ensure the basis of the dismissal is valid.
Workers Compensation
Private sector workers in the ACT may be able to claim for workers compensation in respect of certain medical conditions they suffer in the course of their employment. This includes medical conditions that arise following a workplace investigation if the investigation is not considered ‘reasonable action’.
If you would like more information in relation to how you should conduct a workplace investigation, or you would like us to conduct a workplace investigation on your behalf, please do not hesitate to contact here.