Posts: Investigations

If considering taking disciplinary action due to an employee’s misconduct, it is critical that an employer makes a decision based on wrongdoing as opposed to a mere suspicion of wrongdoing.

In June 2015, Judge Jarrett of the Federal Circuit Court of Australia found that a Northern Queensland-based tour company and its owner had underpaid five employees and contravened the Fair Work Act 2009 (Cth).

Employers regularly have to deal with issues relating to employee behaviour, work performance and misconduct.

The tragic death of a 19 year old college football player in the USA serves as a reminder to sporting organisations at all levels about the duty of care owed to their players.

Fair Work Commission (FWC) considered whether a flight attendant was unfairly dismissed after he failed to attend for work following a night out in New York.

Employers are often required to exercise a significant degree of trust and reliance in job candidates, believing that they will be truthful in recruitment processes.

Employee, worker, talent, resource, temp, contractor – there is an abundance of terms used to describe the people that perform work in a workplace.

The purpose of the Fair Work Commission’s anti-bullying jurisdiction is not to punish bullies or to compensate an individual who has been bullied but to prevent future bullying in the workplace.

When an employee refuses to hand over information or evidence that the employer considers is relevant to an investigation, a formal direction may be issued.

Employers will make every effort to maintain confidentiality when it comes to employees who give evidence as part of an investigation. However, should a matter eventually end up before the Fair Work Commission (or similar tribunal) there is no guarantee that the confidentiality will be upheld.

Employers often seek assistance or advice from their lawyers when a sufficiently serious workplace complaint (such as fraud, sexual harassment or bullying) is made. Lawyers may be asked to conduct an investigation into the allegations and prepare a “Confidential and Privileged” report for the employer, the findings of which may be used later in a disciplinary process.

One of the first decisions to be made by an employer when confronted with a situation warranting investigation is whether the matter can be adequately investigated internally or whether investigation by an independent third party is warranted.

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 Shakir v Department of Family and Community Services [2017] NSWIRComm 1040, Commissioner Newall upheld the dismissal of an employee but criticised the employer for relying on conclusions made in an investigation report that were factually wrong.

In a recent decision of the NSW Industrial Relations Commission (NSW IRC), a senior corrective services officer (the Employee) was reinstated following his dismissal for involvement in an incident which lead to the escape of a maximum security inmate (Collins v Industrial Relations Secretary on behalf of the Department of Justice (Corrective Services NSW) [2017] NSWIRComm 1051).

The Fair Work Act 2009 (Cth) (FW Act) gives the Fair Work Commission (the Commission) the power to make orders to stop bullying where it is satisfied pursuant to section 789FF that: (1) A worker has been bullied at work by an individual or group of individuals; and (2) There is a risk that the worker will continue to be bullied at work by the individual or group.

In Govier v UnitingCare Community [2017] QCA 12, an employee’s appeal was dismissed, confirming an earlier decision that her employer did not breach any duty of care when it issued letters to the employee in the course of an investigation, resulting in aggravation of her psychiatric conditions.

The widely reported decision of Commissioner Stanton in William F v Mt Arthur Coal Pty Ltd [2015] FWC 2343 highlights the importance of witnesses participating in the FWC’s hearing processes.

A Qantas flight attendant (the Applicant) who was sacked for stealing alcohol from a flight and lying about it was awarded $33,731 in compensation by the Fair Work Commission (FWC) after it found that the decision to terminate the Applicant’s employment was harsh.