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Investigating the Investigators: Unmasking the Flaws in Workplace Investigations

The Fair Work Commission has delivered a judgment about a workplace investigation which was conducted by a law firm, and relied upon by an employer to terminate. The Commission recorded various problems with what transpired which are important reminders for employers to consider.

What was the decision about?

In April 2021, a leading education provider instructed a mid-tier law firm to investigate two employees who were alleged to have engaged a family connection as a plumbing teacher in circumstances where he did not hold the necessary qualifications.

The education provider suspended all three employees to allow the investigation to take place, and all three employees were terminated based on the findings of the investigation.

All three former employees filed applications for unfair dismissal.

The Commission’s Decision

The Commission made three significant findings:

  1. The investigation process was flawed because:
    1. the employer did not comply with its own investigation policy; and
    2. the investigator provided evidence to each of the employees which was heavily redacted.  The redactions meant the employees were unable to properly respond to the allegations.
  2. The investigator took far too long to make findings (ie.18 months) and this factor weighed against the procedural fairness of the process.  When making this observation, the Commission considered the psychological impact of the investigation on the employees.
  3. The Commission disagreed with the investigator’s findings and was critical of the employer simply accepting the investigator’s report when the employer ought to have properly considered whether the investigator’s findings were indeed valid.  This is interesting because one would ordinarily engage a law firm to conduct an investigation to “get it right,” so why would an employer second-guess the investigator?

Ultimately, the Commission found that there were no valid grounds for dismissal, ordering the workers’ return and compensation for lost pay.

Important lessons

Investigations should be conducted expeditiously and conducted in a manner that is procedurally fair. Having a clear process for handling misconduct and investigations within your business is key and communicating this to all workers is essential. The case also indicates that an employer might be challenged in an unfair dismissal claim if the employer does not itself carefully at least review the investigator’s findings.  This decision demonstrates just how important it is to get investigations right.

While many might think after reading this that managing an investigation is best handled inhouse, this example should reinforce how easy it is to get it wrong at several points in the investigation.  It is therefore important to ensure that first responders to these matters are trained in managing workplace complaints and investigations.

The team at Australian Business Lawyers & Advisors (ABLA) has the experience required to handle these sensitive incidents, providing advice, facilitation or mediation. We work with employers to prevent and minimise the impact that a workplace investigation can bring to a business, and we understand the importance of a fair investigation that will hold up in court.

ABLA runs regular, expert-led courses on workplace investigations that cover the correct procedures to follow and highlight the mistakes to avoid.  For details on the next available course visit our training page.

ABLA’s free, monthly webcasts on various topics can be watched anywhere, anytime on demand – catch up on our latest workplace investigations webcastIf you need to discuss your specific business circumstances, please get in touch with one of the workplace and employment specialists at [email protected] or call the ASGA Workplace Advice Line to connect to the team any time – find out how here.


Article by Abraham Ash, Director and Victor Song, Senior Associate

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