Workplace Investigations and Responding to Allegations of Misconduct
At face value, responding to allegations of misconduct may seem simple; you put forward your version of events and that’s it, right? Not exactly. This article will provide three general reasons about why responding to allegations of misconduct may not be as simple as one might think.
Reason 1 – Procedural Fairness
A crucial requirement of any workplace investigation is generally that the subject of alleged misconduct must be afforded procedural fairness. Put simply, this means that sufficient and appropriate opportunities must be provided to the subject to respond, and all evidence which is being relied upon by the decision-maker ought to be provided to the subject.
While procedural fairness is generally assessed on a case-by-case basis, not affording proper procedural fairness is a common pitfall in workplace investigation. If procedural fairness has been unreasonably denied, it could be a helpful tool in dismantling a workplace investigation.
Reason 2 – Quality of Evidence
If an allegation of misconduct is disputed, then the quality of evidence which is being relied upon should be scrutinized.
Depending on the type of evidence being relied upon, there could be issues with the evidence, including its objectivity or credibility. The legal principle established in Briginshaw v Briginshaw (1938) 60 CLR 336 is settled law in Australia, and is often cited in determining the quality of evidence particularly where there are allegations of misconduct in workplace investigations. The proposition in Briginshaw imposes a standard of reasonable satisfaction on the decision-maker regarding the quality of evidence which the decision-maker is relying upon to substantiate allegations of misconduct. The more serious the matter being investigated, the more important the quality of evidence is.
Reason 3 – Bias of the Decision-Maker
In some cases, a decision-maker may exhibit what is known as “apprehended bias”. This term flows from the legal principle that: justice should not only be done , but should also be seen to be done. The legal test was established in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 and is whether a fair-minded lay observer with knowledge of the material objective facts might reasonably apprehend that the judicial or administrative decision-maker might not bring an impartial and unprejudiced mind to the resolution of the question at hand.
If you believe the decision-maker may have demonstrated bias, this is a serious concern and should not be ignored. We recommend seeking independent legal advice to ascertain whether there has been any apprehension of bias.
Obtaining Independent Legal Advice
If you are the subject of a workplace investigation, you should always seek independent legal advice as soon as possible, and before any response is provided. In some cases, a subject of a workplace investigation may have reporting obligations to a professional regulatory body , or could be (or is) charged by the Queensland Police Service for alleged criminal conduct related to the workplace investigation.
Feel free to call us on 07 5532 3133 to speak with one our experienced solicitors.