Investigating misconduct complaints in the workplace remains a difficult task for employers. However, caselaw does give guidance to private employers and the public service of the pitfalls to avoid before, during and after investigations.
Key Takeouts
Before commencing a workplace investigation, it is essential to review and adhere to organisational policies, industrial agreements, and employment contracts.
Decisions regarding employee suspension during investigations should be informed by thorough policy review and legal considerations.
The choice between formal and informal investigation procedures depends on the complexity and severity of the allegations.
Before commencing an investigation
During the investigation
After the investigation
Further information
1Kildey and ors v Technical and Further Education Commission [2024] FWC 383, where a relevant conflict of interest policy was not appropriately considered in an investigation.
2Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Ausgrid Management Pty Ltd [2022] FWC 963.
3The Civil Air Operations Officers' Association of Australia v Airservices Australia [2021] FWC 6661.
4Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177.
5Zink v Townsville Hospital and Health Service [2019] QIRC 181 at [323].
6Smith v State of Queensland (Queensland Health) [2023] QIRC 296.
7Zink v Townsville Hospital and Health Service [2019] QIRC 181 at [323].
8Crowley v Modcon Group Pty Ltd [2024] FWC 1423.
9Camilleri v IBM Australia Limited [2014] FWC 5894.
10Barlow v The Commonwealth of Australia represented by the Australian Federal Police [2021] FWC 574.
11Francis v Patrick Stevedores Holdings Pty Ltd [2014] FWC 7775.
12Bluescope Steel (AIS) Pty Ltd v Agas [2014] FWCFB 5993.
13Farmer v KDR Victoria Pty Ltd T/A Yarra Trams [2014] FWC 6539.
14Francis v Patrick Stevedores Holdings Pty Ltd [2014] FWC 7775.
15 See Bridge v Globe Bottleshops Pty Ltd T/A Wellington Beer Wine and Spirits [2021] FWC 3153, where the employer faced significant criticism about the lack of independent inquiry.
16Kildey and ors v Technical and Further Education Commission [2024] FWC 383.
17Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Pty Ltd (No.3) [2013] FCA 25.
18Fair Work Act 2009 (Cth), Section 387(c); Industrial Relations Act 2016 (Qld), Section 320(1)(c)(ii).
19Kildey and ors v Technical and Further Education Commission [2024] FWC 383.
20 See for example, Crawford v BHP Coal Pty Ltd [2017] FWC 154 where the employer was criticised for not involving the employee respondent in the investigation.
21Cannan and Fuller v Nyrstar Hobart Pty Ltd [2014] FWC 5072.
22 This consideration in the QIRC unfair dismissal applications would come under “any other matter that the Commission considers relevant”, Industrial Relations Act 2016 section 320(1)(d).
23Andrews v Stay Cool Refrigeration (Aust) Pty Ltd T/A Gladstone Refrigeration And Air-Conditioning [2023] FWC 209.
24 See Construction, Forestry, Mining and Energy Union v MSS Strategic Medical and Rescue (MSS) [2014] FWC 4336 where it was found to be reasonable to give a warning to an internal support person for breaching confidentiality during a disciplinary process.
25 See for example Dylan Thomas v Serco Australia Pty Limited [2023] FWC 674.
26Cannan and Fuller v Nyrstar Hobart Pty Ltd [2014] FWC 5072.
27 While this may have been an appropriate course of action, ultimately the termination process was found to be procedurally unfair for other reasons.
28Dent v Halliburton Australia Pty Ltd [2014] FWC 5692.
29 Fair Work Act 2009, section 387 (c); Industrial Relations Act 2016 (Qld) section 320(1)(c)(ii).
30Farmer v KDR Victoria Pty Ltd T/A Yarra Trams [2014] FWC 6539.
31Cannan and Fuller v Nyrstar Hobart Pty Ltd [2014] FWC 5072.
32Public Service Act 2008 (Qld), Section 190.
33Wirth v Mackay Hospital and Health Service & Anor [2016] QSC 39; see also Vega Vega v Hoyle & Ors [2015] QSC 111 in relation to natural justice requirements within Queensland Health specifically.