By Kelly Godfrey

Most employers know that workplace investigations can be tricky. They can be performed internally by your staff or externally by an independent investigator. Irrespective of who conducts it, there can be issues with the quality of an investigation.

Before relying on the findings of an investigation, you must consider whether the findings can be supported by the evidence.

Internal investigations: Don’t do this

Jennifer Walker v Salvation Army (NSW) (2017) is an example of an internal investigation that got it wrong.

Ms Walker managed the Salvation Army’s Lidcombe store. She had been employed by the Salvation Army for 11 years and had an unblemished employee record. The Salvation Army summarily dismissed Ms Walker claiming she had stolen $200. Ms Walker commenced unfair dismissal proceedings against the Salvation Army.

On 23 July 2016, Ms Walker served a customer who wanted to purchase furniture. She provided the customer with a handwritten document indicating the items of furniture that would be set aside. The customer arrived later in the week to collect the furniture, claiming he had paid $200 in full to Ms Walker. However, there was no record of sale.

The Salvation Army undertook an internal investigation, reviewed the CCTV footage, and interviewed Ms Walker and the customer. At the conclusion of the investigation, the Salvation Army believed the customer’s account and the CCTV showed Ms Walker had at least $50 in her hand.

The Fair Work Commission (FWC) indicated that the more serious the alleged conduct, the higher the standard of reasonable satisfaction required in determining whether the conduct occurred. The FWC found that the CCTV footage showed Ms Walker holding a $50 note in her hand, but it did not show that she had received that money from the furniture customer and therefore it could have been from another customer.

The FWC held:

• the customer had not paid Ms Walker for the furniture;
• Ms Walker had not engaged in serious misconduct;
• that the termination of Ms Walker’s employment was unfair;
• the investigation was poor and made the decision to terminate on a false assumption (that the customer was telling the truth and the $50 in Ms Walker’s hand was part of the $200 the customer alleged he had given her) when there was no proof that Ms Walker had taken the money;
• Ms Walker should be awarded the maximum compensation, being 6 months’ pay;
  and
• employers need to be open-minded and assess all the facts.

External investigations: Don’t do this either

Hedges v Wakefield Regional Council (2016) is an example of an external investigation that got it wrong.

Mr Kieran Hedges, an employee of Wakefield City Council, was summarily dismissed when an external investigator made findings that Mr Hedges had spat at a work colleague, Mr Allan, and that this constituted serious misconduct warranting dismissal. Mr Hedges commenced unfair dismissal proceedings under the South Australian Fair Work Act 1994.

The Commissioner hearing the case was critical of the investigation because:

• the investigator had not taken into consideration Mr Hedges’ submission that he had spat towards Mr Allan only after Mr Allan had flicked a lit cigarette at him;
• the investigator was not independent, as the firm she worked for undertook legal work for the Council;
• it was not sufficiently extensive;
• it did not take into consideration Mr Hedges’ unblemished employment history.

Commissioner McMahon found the dismissal was unfair and ordered Mr Hedges be reinstated with back pay.

What should you do?

Employers should:

• protect the investigation process by ensuring it is covered by legal professional privilege (LPP) – this is accomplished by contacting your external or internal lawyer prior to commencing the investigation;
• set the scope of the investigation;
• take into consideration the employee’s prior employment record;
• not make false assumptions – like was done by the Salvation Army against Ms Walker;
• thoroughly examine the evidence and make findings based on that evidence, not on unsupported perceptions;
• make sure the investigation process is rigorous if the outcome of the investigation may result in the termination of the employee;
• ensure the findings of the investigation are supported by the evidence; and
• obtain legal advice before terminating the employment of an employee on the basis of the investigation’s findings.