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Is there a “standard of proof” that applies to workplace investigations?
The answer is "yes". In Australia, the findings in a workplace investigation are made on the ‘balance of probabilities’, that is the civil standard of proof. A fact is proven, on the balance of probabilities, if its existence is more probable than not, or if it is...
What is procedural fairness?
Procedural fairness refers to acting fairly in administrative decision making. The expression is often used interchangeably with “natural justice” and is often misunderstood by lawyers and non-lawyers. Put simply - it relates to the fairness of the procedure by which...
Is language important when you are issuing a direction or instruction to an employee?
The answer is “yes”.With a few exceptions, employees are contractually obligated to follow any lawful and reasonable direction issued to them by their employer and a failure to do so can have disciplinary consequences for the employee.However, to be a direction, the...
One of my ex-employees resigned, but is now claiming they were constructively dismissed in an unfair dismissal application to the Fair Work Commission. What is that?
Section 386(1) of Fair Work Act defines “dismissed” to mean when:a. A person’s employment with his or her employer has been terminated on the employer’s initiative; orb. The person has resigned from his or her employment, but was forced to do so because of the...
Can the rule in Jones v Dunkel be applied in the Fair Work Commission?
The answer is “yes”. In Australia, when a party to civil litigation fails to call a witness, or lead evidence that is conveniently available to it and this failure is unexplained, a submission may be made by the opposing party that the rule in “Jones v Dunkel” ought...
Conducting Virtual Investigations During COVID-19
Following on from my previous article, if you have decided that it is appropriate in all the circumstances to conduct an investigation remotely, there are several further considerations to ensure that: The investigation is kept...
You’ve received a complaint. Should you undertake a remote investigation during COVID-19?
Employers should consider whether the allegation of complaint is serious enough to warrant an investigation without delay. Considering the social distancing measures currently in place, employers must: ask whether it is practicable to conduct an entire or part of an...
Workplace Investigations – Starting with the Scope: Learnings from Brett Kavanaugh
As reported by US national news media in recent days, “new misconduct allegations against the Supreme Court justice Brett Kavanaugh were known, yet not fully investigated by Congressional investigators or federal law enforcement personnel. The Senate Judiciary...
How to conduct a workplace bullying investigation – Tips and Traps – Part 4
In Part 1 of this series, I discussed the investigator's role and how to collect evidence. If you missed it, you can read that article here. In Part 2, I discussed dealing with the complainant, witnesses and respondent. If you missed it, you can read that...
How to conduct a workplace bullying investigation – Tips and Traps – Part 3
In Part 1 of this series, I discussed the investigator's role and how to collect evidence. If you missed it, you can read that article here. In Part 2, I discussed dealing with the complainant, witnesses and respondent. If you missed it, you can read that article...
How to conduct a workplace bullying investigation – Tips and Traps – Part 2
In Part 1 of this series, I discussed the investigator’s role and how to collect evidence. If you missed it, you can read that article here. In Part 2 I am going to discuss dealing with the complainant, witnesses and respondent. Dealing with the Complainant It often...
How to conduct a workplace bullying investigation – Tips and Traps – Part 1
The Investigator’s Role The investigator’s role is simple – to get to the truth of the matter. It is not to prosecute the complaint and it is not to defend the respondent. Nor is it to be a mere mouthpiece of the employer or produce a result that might best suit...
