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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...
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...
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 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. But I frequently see this standard misconstrued or misapplied by workplace investigators, including lawyers...
Conducting Virtual Investigations
Sometimes it is more efficient and cost effective to conduct workplace investigation interviews remotely using video conferencing technology such Teams or Zoom and the use of remote interviews has become more commonplace since the Covid pandemic. If you have decided...
How to conduct a workplace bullying investigation – Tips and Traps
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...