Employee investigations are important to get right. One false step could land you at Fair Work for unfair dismissal or breach of the employee's general protections.
When unfair dismissal claims go to Fair Work, they look at procedural fairness and whether the employer had a valid basis for dismissing the employee. Therefore the investigation process must be conducted carefully and respectfully.
7 common mistakes include:
1- Conducting the meeting without giving the employee notice in advance of the meeting and sufficient information.
2- Not giving the employee a chance to nominate and arrange a support person.
3- Evidence- not gathering evidence early enough and not maintaining the integrity of the evidence.
4- The terms of reference of the investigation are not clear enough. At the conclusion of the investigation, there needs to a report which decides whether each allegation is proven. This information is important to provide a valid basis for a disciplinary decision.
5- Giving the impression of bias- this could undermine whether the employee has had a fair investigation. Even if there is sufficient evidence, if the investigation was conducted with bias, then the employee may be successful in an unfair dismissal claim.
6- Not giving reason(s) for terminating the employee. The employee deserves to know the reasons for dismissal. Providing reasons shows that the employer had a valid reason for dismissing the employee, which is required by law.
7- Attending the disciplinary meeting with a pre-written termination letter. By law, the employee is entitled to procedural fairness and the employer must attend the meeting with an open mind.
To reduce your litigation risk, it is important to get workplace investigations right through strategic and meticulous legal advice.
Should you have any questions, please do not hesitate to contact Caroline Mense of our office on firstname.lastname@example.org or (03) 8691 3128.
The Legal Enablers Team