05 Aug 2021

Workplace investigations refresher part 7: Procedural fairness: putting allegations to a person for response

By Jennifer Wyborn

A respondent is not entitled to see every single piece of evidence that is collected throughout an investigation. However, if a decision maker relies on evidence that is adverse to a respondent, then the respondent should be given an opportunity to comment on that evidence.

This is the second procedural fairness article in our series on workplace investigations, where we examine the scope of information which an employer is obliged to put to a respondent as part of an investigation.

What is the key rule?

Once allegations have been drafted, these allegations must be put to the respondent and that respondent needs to be given a fair and reasonable opportunity to respond to the allegations. 

It can be tempting for employers to jump from establishing allegations to taking disciplinary action, particularly when there is strong evidence to suggest the conduct in question occurred. However the respondent must be given an opportunity to respond to the allegations against them and the employer must give their response genuine consideration before determining whether a breach of acceptable workplace conduct or other policy has occurred, and any disciplinary action flowing from that breach. Failure to do so is likely to be seen as a failure to provide procedural fairness and may give rise to grounds for reinstatement or compensation where the employee has been dismissed (Fair Work Act 2009 (Cth), section 387(c).

An opportunity to respond does not mean that the respondent has to be given every single piece of information that has been obtained during the course of the investigation. Only information that is credible, relevant and significant must be put to the respondent for their consideration and response.

What kind of information is credible, relevant and significant?

Put simply, information that is adverse to the respondent's interests and:

  • is from a credible source,
  • which is relevant to the allegations, and
  • may significantly sway the decision-maker's mind,

must be put to the respondent before the decision-maker reaches a view on whether the allegations have been proven.

The High Court has considered the scope of this obligation in Kioa v West (1985) 159 CLR 550, stating:

"where no problem of confidentiality arises, an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made."

In the court's view, this not only includes "the critical factors on which the decision is likely to turn", but "any adverse conclusion which has been arrived at which would not obviously be open on the known material". Critically, the High Court also said in relation to decision-makers that:

"[i]t is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information."

In the context of a workplace investigation, this will include adverse information which underpins the allegations put to the respondent, in addition to any other adverse information received in relation to the allegations. An attempt by a decision-maker to simply ignore such information as part of their determination process is likely to be seen by the court as a denial of procedural fairness, in light of the High Court's comments.

That being said, in practice, this does not mean disclosing every piece of information received that may portray the respondent in a less than complimentary light; it means giving them the opportunity to respond to any information that may affect the decision-maker's ultimate finding on the allegations, consciously or subconsciously.

In Robby Lankam v Federal Express (Australia) Pty Ltd t/as FedEx [2011] FWA 6230, Mr Lankam's employment as a parcel sorter was terminated on the purported basis that he either stole or deliberately disposed of two parcels without authority, one of which contained gold jewellery worth about $23,000, and that he breached company policy by having in his locker a packing knife for cutting packaging, pornographic DVDs, and a plastic bag which FedEx alleged was from a gold buying business. Commissioner Deegan observed that Mr Lankam did not deliberately dispose of the parcels based on available CCTV footage, and had credible explanations for the items in his locker. Further, she found that Mr Lankam having a plastic bag from the gold buying business in his locker did not amount to a breach of company policy, and his explanation for it being did not equate to him being dishonest or evasive during the investigation process. Importantly, during the investigation process, FedEx had told Mr Lankam that he was not being accused of stealing the parcels, yet under cross examination, a FedEx witness admitted their view that Mr Lankam had been dishonest in the investigation about his handling of the parcels and Commissioner Deegan concluded that was the real reason for terminating his employment. As a consequence, Mr Lankam was unfairly dismissed as he had not been adequately notified of the reasons for his termination, and paid the maximum amount of compensation.

This case demonstrates the tension in relying on information to make an adverse finding - the presence of the plastic bag in the locker - despite there being a credible explanation for it. In Mr Lankam's case, the plastic bag was from a promotion for gold cleaning Mr Lankam obtained from a shopping centre containing a fake $50 note which he thought would be a joke to share with his colleagues, and further, the shop confirmed to FedEx that it had not purchased any such jewellery as that contained in the parcel that went missing. Such tension highlights the need for decision-makers to carefully consider what information truly is credible, relevant and significant at the point of ultimately determining whether the allegations are proven. This does not mean using pieces of information obtained during the investigation process upon which to hinge a finding of misconduct.

What is sufficient for disclosure?

Upon initially determining what adverse information is credible, relevant and significant, it should be disclosed to the respondent. As we have explored above, disclosure does not necessarily mean handing over every document obtained and produced during the course of the investigation. The purpose of the disclosure is to provide the respondent with an opportunity to respond and therefore it is only necessary to provide them the substance of the information with enough specificity about the allegations so that they can accurately respond to them.

Courts have considered a range of matters in the context of this overarching obligation, including whether an employer must provide a respondent with copies or transcripts of interviews with witnesses. In Coutts v Close [204] FCA 19, Mr Coutts, an AFP sergeant, was found to have breached the AFP Code of Conduct on the basis he used excessive force on a civilian and his employment was terminated. Mr Coutts sought judicial review on a number of procedural fairness grounds, including that he was not given access to full copies of all interviews conducted during the investigation. The Court determined that Mr Coutts had been provided with "adequate summaries of the relevant evidence when measured against the particular extracts from the actual directed interviews relied on by the applicant" and that there was no general "open file" obligation on the AFP as his employer.

However, the extent to which an employer is obliged to give detailed information to a respondent during an investigation will vary in different circumstances. In Independent Education Union of Australia v Father Nicholas Pearce [2020] FWC 5416, a teacher accused of assaulting a student argued she was denied procedural fairness under the procedures contained in the relevant enterprise agreement, which required "procedural and substantive fairness". As she was not provided with key information including dates each witness was interviewed, the questions put to the witnesses, a detailed summary of evidence as to what each witness said, confirmation of whether the student was medically assessed, and the investigation report, the Court said:

"It is uncontroversial that sufficient detail of the allegations and the context within which they are made ought be provided to permit an informed response. In some cases, this may involve the provision of witness statements, questions posed to witnesses and the provision of medical reports. In other cases, documents such as investigation reports need not be provided. Ultimately, it involves consideration of the particular circumstances…"

The Court noted in this case that the decision turned on the enterprise agreement provisions which imposed a higher obligation than the general principles of procedural fairness. It is important to be aware of any additional obligations or standards in an enterprise agreement, industrial instrument or specific regulations when assessing what information should be provided to a respondent.

It is important to note an employer's disclosure obligation may change throughout the investigation as more material is gathered. In Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs, the Refugee Review Tribunal was determining an application for review of a decision refusing a protection visa. At this time, the then Department of Immigration and Multicultural and Indigenous Affairs received a letter indicating the appellant had killed someone in his home country of Eritrea and was working for the government. The author of the letter requested this information be kept secret. The Department forwarded the letter to the Tribunal. In its decision, the Tribunal denied the request for review and noted in its decision that it gave weight to the letter. The Applicant appealed to the Federal Court on the grounds he was denied procedural fairness by not being able to respond to the letter before the Tribunal made its decision. The Federal Court determined that whilst it was appropriate for the Tribunal not to provide the appellant with a copy of the letter or the identity of the author, the Tribunal should have told the appellant of the substance of the letter.

What about witness confidentiality?

Where evidence contains information from a witness that is unrelated to the investigation, such as information about a medical condition the witness has disclosed, that information does not need to be given to a respondent. Such information can be extracted or redacted before the substance of the evidence is provided to the respondent.

It is good practice to be clear with witnesses upfront that while every effort can be made to protect their identity and confidentiality in the investigation, the very nature of the allegations may mean the witness' identity becomes apparent to the respondent. Employers need to ensure the handling of witness information is managed in accordance with their privacy policy, and it may be worth making copies available to witnesses as part of the investigation.

Employers should also take steps to reduce the risk of victimisation complaints by reiterating the support mechanisms available should a witness have any concerns about their confidentiality as the investigation progresses.

Key takeaways for employers

As we have seen from some of the cases discussed in this article, whether a respondent has been given a sufficient opportunity to respond to the allegations such that an employer has discharged its procedural fairness obligations is not formulaic. The extent of the obligation will depend on the individual circumstances and the nature of the information made available during the investigation.

Some helpful tips to keep in mind:

  • Be sure to adequately particularise the allegations so the respondent can properly understand what is being alleged, and so the decision-maker can understand what facts are required to be established for the allegation to be proven;
  • It may be worth interviewing the respondent last and after all the information has been collected, so the investigator can fully assess what is credible, relevant and significant; and
  • If new evidence comes to light before a final decision is made, schedule a follow up meeting with the respondent and allow them a further opportunity to respond to that evidence.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.