AUSTRALIA Law and Practice Contributed by: Kathy Dalton, Jonathan Wright, Gella Rips and Mirna Oghanna, Workdynamic Australia
• Even when policies are not legally binding, courts and tribunals such as the Fair Work Commission have often criticised employers who have failed to follow their own procedures, especially where disciplinary action or dismissal is involved. 5.3 Burden and Degree of Proof The employer bears the burden of proof in a work - place investigation. This requires the employer to determine, on the bal - ance of probabilities, whether an allegation is substan - tiated. In practical terms, the investigator must assess whether it is more likely than not that the alleged con - duct occurred, which is a lower threshold than the criminal standard of beyond reasonable doubt. Importantly, reaching a finding on the balance of prob - abilities is not a mechanical exercise of simply being marginally persuaded more one way than the other (in other words, 50+1%). The investigator must be genu - inely satisfied, based on the quality, credibility and reliability of the evidence, that the alleged conduct is more likely than not to have occurred. The balance‑of‑probabilities test must also be applied consistently with the Briginshaw principle established by the High Court decision of Briginshaw v Briginshaw [1938] HCA 34. Simply, this means that the more seri - ous the allegation or the potential consequences, the stronger and more compelling the evidence needs to be for the decision-maker to feel an “actual persua - sion” and reach the necessary state of reasonable satisfaction that the allegation is made out. 6. Conclusion and Outcome of an HR Internal Investigation 6.1 Deciding to End an HR Internal Investigation In practice, an investigation ends once the investigator is satisfied that all reasonably available evidence has been obtained, no further evidence can be gathered, and the investigator’s report has been completed and provided to the decision‑maker.
There are, however, some circumstances which may mean that an investigation ends before its completion, including as follows: • a reporter withdraws their complaint and there is no WHS risk to other employees if the investigation is not pursued; • the reporter’s or respondent’s employment ends, their response cannot be obtained, and there is no ongoing WHS risk to other employees; • it has been paused or ceased due to a criminal matter (see 6.6 Communications to Authorities and 8.4 Criminal Cases ); and • the respondent is absent from the workplace for an extended period of time, such as being on long- term personal leave. An investigation may also not proceed at all where a preliminary assessment determines that the matter does not warrant a formal investigation (see 2.4 Pre- liminary Investigation and Scope-Setting ). Any decision to cease an investigation before comple - tion should be clearly documented. 6.2 Procedure for Ending an HR Internal Investigation The specific procedure to be followed once the inves - tigation is complete will depend on the relevant inves - tigative framework. In practice, after the decision-maker has accepted the investigator’s findings, they will communicate the outcome to the reporter and the respondent. Witnesses are not usually informed of the outcome of the investigation. However, the end of the investiga - tion may be an appropriate time to provide them with a reminder about their ongoing confidentiality obliga - tions. Other parties, such as external authorities or affected team members, may also need to receive limited or tailored communication about the outcome, where appropriate (see 6.6 Communications to Authorities and 6.7 Other Communications ).
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