Affording employees the right to procedural fairness
In a decision delivered in early August, a Fair Work Commission full bench has rejected that an employer is required to provide an employee with a copy of a confidential investigation report that details their alleged misconduct.
However, the Bench also found that the employer failed to afford the worker natural justice and due process during the investigation process, raising questions for employers as to what level of disclosure is required of them when conducting a disciplinary process flowing from a workplace investigation.
Primary consideration for employers: When considering what level of information employers should provide employees, the overriding principle is that the decision-maker brings to the worker’s attention the critical issue or factor on which the decision is likely to turn so that the worker has an opportunity of dealing with it. That is, they are on notice of its “essential features” of the adverse allegations and evidence against them.
In the decision, Aurizon conducted a disciplinary process without providing the worker with a copy of an investigation report which contained findings of misconduct against the worker. Aurizon cited confidentiality concerns as its basis for resisting production of the report.
At first instance, Deputy President Cross found that the relevant enterprise agreement applicable to the parties compelled Aurizon to providing the affected worker with a copy of the investigation report.
On appeal, the Full Bench found that no such requirement existed in the enterprise agreement and that in the absence of any such requirement, there is no “express or implicit requirement” for investigation reports to be provided to the relevant employee.
However, the Full Bench found that, to afford the employee natural justice and due process, the employer nevertheless had an obligation to inform “the affected person of the nature and content of adverse material that is credible, relevant and significant obtained from sources other than the affected person.”
The Full Bench found that the substance of such adverse material needed to be provided to the employee and had not been.
In reaching its conclusions, the Full Bench placed considerable weight on Federal Court decision Coutts v Close [2014] FCA 19, which concerned an investigation into the alleged misconduct of an employee, where the affected employee claimed that they were denied procedural fairness or natural justice because they did not have access to “accurate or complete evidence or the totality of the evidence (including the tapes or transcripts of all the records of interviews and CCTV footage).”
In Coutts, the Court relevantly found that:
1. The employer was under an obligation to inform the affected employee “of the nature and content of adverse material that is credible, relevant and significant obtained from sources other than [the affected person themselves]”.
2. The general requirement that this adverse material is produced does not mean that verbatim copies of material must be disclosed – “In some circumstances, it is sufficient that the affected person is informed of the gravamen substance of the issue.”
3. The overriding principle is that the decision-maker brings to the worker’s attention the critical issue or factor on which the decision is likely to turn so that the worker has an opportunity of dealing with it. That is, they are on notice of its “essential features”.
4. The Court found that in this particular case, dot-point summaries in the investigation report were sufficient to discharge the relevant requirements of procedural fairness. The investigation report given to the affected person “contained an adequate summary of the evidence given by the various witnesses which was relevant, significant and credible and to which the applicant was otherwise entitled to have notice.”
5. Redaction of complainant names and witness names might also be appropriate, provided there are good or substantial reasons for preserving confidentiality in a particular case, and provided that the “essential features” of the allegations and evidence against an employee are still disclosed.
What happens if an employer fails to afford natural justice or procedural fairness
If an employer does not comply with the principles outlined above and if this failure impairs an employee from securing a favourable or more successful outcome in a disciplinary process, the failure can expose employers to various types of liability, including:
By Luis Izzo, Managing Director – Sydney Workplace and Georgia Cluff, Paralegal, at Australian Business Lawyers & Advisors
