Debunking myths about workplace investigations, the rule of law and the presumption of innocence

Limelight Articles

Limelight 03/21

Debunking myths about workplace investigations, the rule of law and the presumption of innocence

Author, Sarah Wood

Employers do not need to search hard for public examples of how to handle the interplay between workplace investigations and criminal investigations. It is timely to consider the issues arising for workplaces when facing allegations which might be historic in nature and involve a potential or actual criminal investigation.

It is not unusual for a workplace investigation to be put on hold while a criminal investigation is undertaken by police. This allows the criminal investigation to run its course, without interference by a separate process. Once the criminal investigation is complete, an employer can recommence its own investigation. It is open to an employer to decide not to investigate an allegation, but that would be extremely rare. Indeed, it is hard to think of an example where an employer should not investigate an allegation. This is because:

There are workplace safety issues to consider.

An allegation without investigation means there is risk the alleged conduct may be repeated. Of course, an allegation is just an allegation until it is substantiated, but without an investigation, how will anyone ever know? As long as an allegation is left without a finding, there is risk it could be true. Whatever the outcome, the findings will provide an employer with the information it needs to take the appropriate action.

An investigation is a signal to others that allegations are taken seriously.

This instils confidence in an employer’s policies and processes. It also shows victims on the receiving end of inappropriate conduct that it is ok to report it. Further, it can act as a deterrent to those who have previously engaged in inappropriate conduct or likely to engage in such conduct in the future to stop. These are all outcomes that arise irrespective of the ultimate findings or outcome of the investigation. The mere act of responding to an allegation can accomplish this. Investigating allegations, even those that are ultimately not established, shows that an employer’s processes work. It makes it more likely that inappropriate conduct will be discovered and dealt with, or prevented in the first place.

The risk of spurious or unfounded allegations cannot be known unless an investigation takes place.

For the same reasons of deterrence and confidence in a complaints process, it is important that malicious allegations are stamped out. The only way of finding out whether an allegation has an ulterior purpose is by investigating it thoroughly.

It is not correct to assume that because an incident is alleged to have taken place between two individuals with no other witnesses that there is no further evidence to consider.

There may be medical evidence to consider, clinical notes, reports to other witnesses at the time or later diary notes. There may be other reports of similar conduct. Whatever the case, the investigator will need to make an assessment based on the evidence that does exist. But only a proper investigative process will make this clear. The fact a police investigation may have been commenced and concluded with no charges laid does not mean there is no evidence for an employer to consider, or that a workplace investigation serves no purpose. An employer must make its own decision, and the standard of proof and issues relating to admissibility of evidence are very different in the two cases. The potential outcomes are also different. There is no risk that a participant in a workplace investigation will end up facing criminal charges, unless a workplace investigation reveals crucial evidence not previously available to the police. Again, there are many examples of workplace investigations that have taken place following a police investigation which has resulted in no charges. The police are not decision-makers for workplaces.

The presumption of innocence and the rule of law

All of the above can and should take place based on a presumption of innocence, being a principle underlying the criminal law. The civil equivalent is the concept of natural justice or procedural fairness, standards that all good workplaces and workplace investigations should adopt. A good workplace investigation will be independent, free from the perception of bias or pre-determined outcome, and handled by competent investigators. It should consider all relevant evidence and allow witnesses the opportunity to respond to allegations.

The rule of law encompasses more than just the criminal law. There is nothing about a proper investigation process conducted under workplace laws that offends the rule of law. To the contrary, a good workplace investigation conducted properly demonstrates the rule of law at work.

When might an employer decide not to investigate an allegation?

There are circumstances in which an employer might decide not to investigate an allegation. These may include:

The allegations being very minor and are able to be properly and readily addressed by getting the parties together to work it out.

The allegation may be obviously baseless. For example, an allegation that someone stole a piece of property that has never moved from it usual location. However, it would likely need to be something as clear as this to warrant no investigation.

The allegation being historical, alleged to have occurred so long ago that the victim is no longer at risk and there could be no chance the conduct could be repeated even if true.

An employer will need to make a judgment call here. It would need to be very confident that no person’s health or safety was at risk as a result of the decision not to investigate the allegation. There are also reputational reasons why an employer might decide that historical allegations need to be investigated.

The allegation relates to conduct outside of the workplace.

This is also a judgment call. From a general employment law point of view, there are many cases where ”outside of hours conduct” has been found to have the necessary connection to a workplace to warrant the employer conducting its own investigation and taking the appropriate action. For example, in Luke Urso v QF Cabin Crew Australia Pty Limited t/a QCCA [2019] FWCFB 1322 the Fair Work Commission Full Bench upheld a decision by Qantas to dismiss a flight attendant after he had consumed an excessive amount of alcohol the day before being required to board a flight; in Aaron Hunt v Coomealla Health Aboriginal Corporation [2018] FWC 3743, a men’s health care worker was validly dismissed after he admitted to domestic violence; and in Luke Colwell v Sydney International Container Terminals Pty Limited [2018] FWC 174 the dismissal of a worker on a rostered week off was upheld after he sent sexually explicit material to co-workers through Facebook Messenger.

We recommend seeking legal advice if a business needs to determine whether to commence a workplace investigation. Gilchrist Connell’s Workplace team can assist with providing advice on, and guidance through, any investigation process.

Sarah Wood Principal, Sydney Direct: +61 2 8240 8020 swood@gclegal.com.au

This publication constitutes a summary of the information of the subject matter covered. This information is not intended to be nor should it be relied upon as legal or any other type of professional advice. For further information in relation to this subject matter please contact the author.