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Is your investigation process flexible enough?

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One size does not fit all

The Queensland Industrial Relations Commission (QIRC)’s decision in East Coast Pipeline Pty Ltd v Workers Compensation Regulator [2016] QIRC 101 (East Coast Case) suggests to employers that internal investigations should be both in accordance with the applicable policy and flexible enough to adapt to the situation rather than simply follow a rigid process that may not fit the circumstances.

In our previous blog - Conducting Investigations: Are you in or out? we discussed internal and external investigations. The Queensland Industrial Relations Commission (QIRC)’s decision in East Coast Pipeline Pty Ltd v Workers Compensation Regulator [2016] QIRC 101 (East Coast Case) suggests to employers that internal investigations should be both in accordance with the applicable policy and flexible enough to adapt to the situation rather than simply follow a rigid process that may not fit the circumstances.

In the East Coast Case, an internal investigation was conducted arising from a complaint of sexual harassment and a complaint of bullying lodged by two separate employees. The accused employee was asked to meet with the General Manager and Operations Manager the following day to discuss the complaints. In the meeting the employee questioned the validity of the complaints and then went home. The employee was then informed via email that he had been suspended from employment on full pay pending the conclusion of the investigation.

The employee (who had a history of depression) alleged that he became stressed, anxious and depressed and lodged a workers compensation claim. The claim was accepted by the insurer. The employer appealed the decision on the basis that the employee did not suffer a psychological injury and that even if he did; it was a result of reasonable management action, taken in a reasonable manner (relying on the exemption under the Workers Compensation and Rehabilitation Act 2003 (QLD)).

To determine whether reasonable management action was taken in a reasonable manner the QIRC examined the decision making and investigation process of the Employer.

With respect to the investigation, the QIRC said that the investigation for a small employer appeared to be “unnecessarily” forensic or elaborate. In particular, the Employer had:

  • Asked the complainants to formalise the complaint;
  • Conducted formal interviews;
  • Had a two-stage interview process;
  • Made participants sign confidentiality agreements;
  • Kept records of meetings and required employees to sign and endorse;
  • Sent follow up emails;
  • Confirmed arrangements of interviews; and
  • Suspended the accused employee.

The QIRC said that the investigation failed in two areas:

  1. There was a lack of sensitivity as the allegations were delivered to the employee over the phone. The employee could have been spoken to privately in a face to face conversation so the employer could gauge the reaction of the employee to the allegations.
  2. The employer failed to test the veracity of the complaints before presenting formal allegations to the employee.

While this decision of QIRC found that the investigation process was “unnecessarily forensic or elaborate” in this particular matter – it does not mean that there is no place for formal investigations. A formal process demonstrates that the employer is taking the matter seriously. Furthermore, should the investigation lead to a disciplinary action, it can be relied upon by the employer in the disciplinary process and/or in any subsequent litigation. A formal investigation process also creates a clear expectation of what should occur in an investigation.

In the East Coast Case, the process used was not in accordance with the Company policy. In addition, the complaint was handled by the Industrial Relations Manager instead of the Human Resource Manager (as required by the policy).

If an employer has a policy in place, it is important they follow it. This is why it is helpful for employers to have regular reviews of their policies to ensure that the policy remains flexible enough to take into account different circumstances. For instance, in the East Coast Case, the employer was aware that the employee had a mental illness and despite this, they continued to use a rigid investigation process. The QIRC commented that the employer should have taken into account the employee’s mental health when communicating with him and when listening to his responses.

 

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

 

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