Workplace Investigations – A reminder to ensure that investigations are completed in a timely manner for the benefit of all those involved.

A case before the Fair Work Commission serves as a timely and important reminder that simply getting a workplace investigation underway doesn’t mean that the employers work is done, and the investigation can take as much time as it takes to complete.

The recent case before the Fair Work Commission involved three employees who were the subjects of a workplace investigative process by TAFE NSW . The investigation was undertaken by a law firm on behalf of TAFE.

Beginning in April 2021, the investigation into allegations regarding recruitment processes and decisions, took twelve months to get to a point where the respondents were asked to ‘show cause’. The respondents were later terminated in June 2023.

The Commission was very critical of a couple of elements of the process – firstly that it took 18 months to complete and that despite that extremely long passage of time, secondly that during the protracted period none of the three employees who were the respondents were interviewed and that for that entire period the employees were suspended form work on full pay.

In dealing with the specifics of the allegations and the report findings, the Commission essentially found that all the allegations either could not be found to be substantiated, or that they were relatively minor in reality and could not be used to support a decision to terminate an of the employees.

Interestingly, the Commissioner in making his decision, also made some remarks that are an important reminder of how employers should manage the workplace investigative report when provided to them. The Deputy President said the following:

• "When the report was provided TAFE took an uncritical view of the matters contained in the report and effected the dismissal."
• "[TAFE's decision-maker] expressed the view that he had no other real choice”.
• "I take him to mean that when an external investigator provided a report asserting that employees had acted fraudulently, dishonestly and corruptly then his only option was to dismiss those employees”.
• "This view was no doubt informed by the fact that the investigation was carried out by a law firm".
• "There was of course another option for [him] and that was to critically review the report and its findings and to form his own view."

Building on the earlier key point regarding timing at the start of this article, employers should note that they need to not only get the process underway quickly, but also they need to actively manage the process from start to finish to ensure that it is completed in a timely manner. Finally, and very importantly, they also need to ensure that when the report is provided, it should be subjected to ‘due diligence’ review and analysis by the delegate before being accepted and acted upon.

https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc383.pdf

HBA Consulting has provided workplace investigation, review of decisions and Public Interest Disclosure investigations for many years. Our highly experienced senior consultants have decades of experience in the private and public sector settings..