AUSTRALIA Law and Practice Contributed by: Kathy Dalton, Jonathan Wright, Gella Rips and Mirna Oghanna, Workdynamic Australia
5. Procedural Requirements and Proof 5.1 Requirements Investigations must be carried out in a procedurally fair manner, consistent with applicable legislation and the organisation’s investigative framework, and with regard to the principles outlined in this chapter. A failure to follow proper process can expose employ - ers to significant legal and organisational risk, includ - ing: • compromised or unreliable investigative findings; • loss of LPP; • unfair dismissal claims; • breach of contract claims; • adverse action claims; • psychological injury claims; and • reputational harm. 5.2 Internal Regulations Employers often have internal regulations in workplace policies or enterprise agreements that go beyond the minimum standards of procedural fairness. These may include, for example: • providing specific timeframes for each stage of the investigation; • allowing an employee to participate by providing a written response only, rather than attending an interview; and • requiring the engagement of an external investiga - tor for certain types of allegations. Significant risks can arise when employers fail to comply with their own policies or with investigation procedures embedded in an enterprise agreement, including the following. • A breach of an enterprise agreement can amount to a contravention of the FW Act and exposure to significant penalties. • Policies that state that they are “not contractually binding” may, when challenged, be found to have legal effect. In some cases, they can be treated as enforceable terms and a failure to follow them may constitute a breach of contract.
• ensuring readily accessible employee assistance services. 4.2 Protection of the Respondent See 4.1 Protection of the Reporter regarding reporter protections, which apply equally to the respondent. 4.3 Measures Against the Respondent Any interim measures taken against the respondent before the investigation is finalised need to be taken with caution, as they can compromise the investiga - tion findings and expose the employer to legal and regulatory risk. As a guiding principle, such measures should only be taken where it is lawful and reasonably necessary to protect health and safety, safeguard the integrity of the investigation or preserve evidence. Employers must also take care in how these meas - ures are recorded and communicated to the respond - ent. It is essential that they are taken as necessary risk‑management steps, rather than as a response to any presumed misconduct. Examples of potentially adverse measures – such as suspension from duty, reallocation of reporting lines and remote work – that may be taken against the respondent are set out in 4.1 Protection of the Reporter . Formal disciplinary action relating to matters under investigation should not be taken prior to concluding the investigation. However, there may be circumstanc - es in which the respondent has engaged in conduct that warrants immediate disciplinary action, such as a clear breach of confidentiality or refusing to comply with a lawful direction related to the investigation. In such cases, a warning letter or show-cause discipli - nary process may be appropriate in respect of that conduct. 4.4 Protection of Other Employees The protections for other employees are the same as those set out in 4.1 Protection of the Reporter .
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