Deficiencies in workplace investigations can create significant legal liability for employers. This has been reminded by a recent decision by the Fair Work Commission (FWC) where an employee was awarded over $36,000 due to flaws in their employer’s investigation process.
In this case, the employee put forward a complaint due to inappropriate comments made towards her by a male colleague. The employer commenced an investigation, but it was concluded that the allegations could not be substantiated on the basis that the accounts of the parties did not align. As a result of the outcome, the employee resigned and applied for an unfair dismissal based on the characterisation of her resignation as a “constructive dismissal”. In accordance with the FWC, a “constructive dismissal” is defined as a forced resignation where an employee has no real choice but to resign.
The Commission identified five flaws in this investigation which included:
- A failure to obtain relevant evidence.
- A flawed substantiation approach.
- Unequal treatment of the complainant and respondent.
- A delayed and ambiguous outcome letter.
- Unreasonable burden placed on the complainant.
Ultimately, the Commission was led to the conclusion that the dismissal was unfair, and the employee was to be compensated for the time she was expected to remain employed, which was a further six months.
Key Takeaways
Workplace investigations are nuanced processes. This matter brings light to a few key takeaways:
Ensure relevant evidence is gathered.
There needs to be comprehensive evidence, which is sufficiently gathered and relevant to the situation, including information from witnesses who directly observed the event.
Ensure the assessment of evidence is reasoned.
Where there are differing accounts of the situation, the evidence needs to be properly evaluated and weighed, as opposed to treating inconsistency on its own as a determinant.
Maintain a consistent treatment of parties involved.
How complainants and the subjects of the complaint are treated throughout the investigation process needs to be consistent, including communications and outcomes.
Provide clear and timely communication.
The communications around the outcome should be issued without delay and be consistent and explicitly clear to avoid confusion and loss of trust with the company.
Ensure post-complaint arrangements are balanced.
Employers should be vigilant to not place the burden of workplace adjustments based on the investigation solely on the complainant and should consider all reasonable alternatives.
Be aware that process failures may lead to dismissal liability.
As seen in the case mentioned, failing to undertake a thorough and fair investigation process can result in resignation being characterised as a constructive dismissal and expose employers to unfair dismissal claims.
If your company needs to undertake a workplace investigation, or would like guidance on this matter, contact us via the link below.