By Charles Power

When the time comes to complete a report of a workplace investigation, you must ensure that the report:

• briefly summarises the investigation process;
• confirms the scope of the investigation (i.e. summarises the allegations and/or facts that were investigated);
• considers the credibility of the participants and weight attributable to their evidence; and
• considers any other factors that influenced the investigation.

When making findings for a report, the investigator should consider:

• any evidence provided by the complainant;
• any evidence provided by the respondents;
• any evidence provided by witnesses or other participants;
• any other available information or documents; and
• the balance of probabilities (i.e. was the allegation proven, disproven or inconclusive?).

One thing you need to remember is that all findings in an investigation report must be supported by the facts. If facts are established, you need to determine what law or policy is contravened by the conduct. Sometimes this is done by the investigator. Sometimes it is done by you, usually with the help of legal advice. After this, you then need to decide the appropriate disciplinary response.

You do not need to give the report to the respondent or the complainant – but you do need to convey the findings. If the report raises matters that were not put to the respondent during the investigation – or the respondent raises new matters about the process of the investigation or the matters investigated – you need to give the respondent an opportunity to comment on the report before making a decision.

You also need to ask the respondent whether there are any other matters they think you should consider in making the final decision on the basis of the investigator’s findings.

Take this case as an example:

In Frances v Kalgoorlie Consolidated Gold Mines ([2010] FWA 5472) a supervisor was dismissed following an internal investigation into a safety incident.

A report was prepared by the investigation team, which included the findings and recommendation that Mr Frances be given a final warning. Management considered the report and decided to terminate his employment.

Nobody in the management group met with Mr Frances. The management was not aware of Mr Frances’ employment history and record. There was no formal communication between the employer and Mr Frances from the day he was stood down, which was the day he was interviewed by the investigation team and gave his statement, and when he received his letter of termination.

Mr Frances was not provided a copy of, nor formally advised of, the investigation team’s report or its findings. He only heard informally what it had recommended in terms of disciplinary action. Mr Frances was not given an opportunity to respond to the investigation team’s findings nor to put any other matters forward to the employer to consider before they decided to terminate him.

Therefore, Fair Work Australia found his dismissal to be unfair.