1.Not having a policy on workplace behaviour
2.Confusing “evidence” and “proof”
Put simply, the purpose of a workplace misconduct investigation is to gather and analyse facts which will assist the employer to form an opinion about whether misconduct has occurred.
By conducting interviews, looking at documents and so on, the investigator will gather evidence. But there is another step to be taken, which is to consider whether the evidence is sufficient to prove the misconduct occurred.
There are different kinds of evidence.
Direct evidence is evidence which in and of itself establishes the misconduct. For example, CCTV footage of an employee assaulting another employee is direct evidence.
Circumstantial evidence is evidence which may tend to prove a fact, but it requires some conclusions to be drawn to make the connection. For example, if the allegation is that Maria stole money from an employee’s locker between 10 am and 11 am on a particular day, the fact that Maria was seen to go into the locker room at 10.15 is circumstantial evidence.
Expert evidence is evidence which is obtained from a person who is an expert in their field, such as a medical expert or a handwriting expert. Copies of expert evidence relied on may need to be provided to the employee, for example if the employer’s policy requires it, or the evidence has significant limitations which it would be unfair to withhold from the employee.
In forming an opinion as to whether misconduct has occurred, in most cases the employer and/or investigator should act reasonably.
“Circumstantial” evidence is not less reliable than direct evidence, but it depends on whether a reasonable conclusion can be made by the investigator based on the circumstantial facts which have been established.
A recent decision of the NSW Court of Appeal (Bartlett v ANZ Banking Group  NSWCA 30) showed how complex this can be.
The ANZ Bank had summarily dismissed a senior employee, Mr Paul Bartlett for breach of its Code of Conduct and Ethics. An internal investigation found that Mr Bartlett had amended a copy of an internal confidential email and posted it to a journalist at the Australian Financial Review. The circumstantial evidence that the Bank relied on included:
Mr Bartlett was one of 10 staff who received the original email.
The email had been posted in NSW and he was one of 6 of those 10 people who were located in Sydney.
He was the only one who acknowledged knowing the journalist.
His handwriting was matched to the envelope.
He appeared to have a motive.
The Bank engaged a handwriting expert to examine the handwriting of the envelope and a specimen of Mr Bartlett’s handwriting. However the expert’s report contained a number of limitations, including that she had not seen the original envelope.
The Bank’s policy required that the employee should be able to respond to any evidence that may be relied on with evidence of their own. While the Bank could dismiss if it formed an opinion that he had engaged in misconduct, the Court held it had to act reasonably in doing so.
Mr Bartlett asked for a copy of the expert report, but this was refused. The Court held that this was unreasonable, as he was not able to respond to that evidence as the Bank’s policy required. In the Court’s view, the report had errors and Mr Bartlett did not have a chance to discover these.
Also, the Court held that limiting the investigation to the 10 people who received the email was unreasonable, since there was evidence that a printed copy of the email was available at a meeting which about 50 people attended, and this copy was unaccounted for by the investigation.
The Court held that the Bank had breached Mr Bartlett’s contract, and he was awarded damages.
4.The allegations are vague or ambiguous
The allegations specify the misconduct that the employee is alleged to have committed. They must contain sufficient information so that the employee can respond fully to the allegations.
If allegations are vague or ambiguous, it makes the process unfair. A dismissal or disciplinary action could be successfully challenged in the Fair Work Commission or relevant tribunal if the process is unfair. One of the key elements of procedural fairness is the right to a fair hearing. The courts have determined that if a person’s ability to respond to allegations is adversely affected because they could not understand them or did not have all the necessary information, they will not have had a fair hearing.
An example of a poorly drafted allegation is:
“You used Council resources for your own personal benefit.”
In order to be fair, the allegation should read something similar to this:
“You committed misconduct contrary to clause 2.1 of the Workplace Conduct Policy, when:
– On Friday 12 May at about 10 am at the Council depot, you used a Council truck to pick up rubbish from your home at 12 Station St, Mogo and took it to the rubbish depot, without permission.
– On Wednesday 30 June 2017 you took six bags of gravel from the Council depot for your own use, without permission. You later used this gravel on your driveway at your home.”
The allegations should ideally include the date, time and location where the alleged conduct took place. If the exact date and time is not known, it should be as accurate as possible.
There must be a description of the conduct. If it is alleged that the employee’s conduct breached a policy or code of conduct, which carries disciplinary consequences, the particular part of the policy or code of conduct should be referred to.
5.Not allowing a support person at the interview
There is really no reason not to allow an employee who is being told about allegations against them or giving their response to those allegations, to have a support person with them. The Fair Work Act specifies that any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal must be taken into account when the Fair Work Commission decides if a dismissal was unfair.
It is not unreasonable, however, for the employer to require that the support person is not someone who was involved in the misconduct or witnessed any of the incidents. If the support person is a union representative or lawyer, they should not speak on behalf of the employee unless there is a good reason why the employee cannot speak on their own behalf.
6.Treating the investigation like a criminal investigation
There is no absolute right to silence for an employee, unless the investigation concerns conduct which is or could be criminal. In that case, answering questions during a workplace investigation could incriminate them. An employer cannot compel an employee to answer a question in most cases.
Compelling an employee to answer a question by duress or bullying would make the investigation unfair, and if the employee was dismissed, the employee could bring an application for unfair dismissal under the Fair Work Act 2009, or possibly an application for an anti-bullying order.
In a 2013 case concerning a police officer, the Supreme Court of NSW said that the officer had a right not to incriminate himself in a workplace investigation and could refuse to answer questions about an incident which could potentially be a criminal matter.
However, the employer can still decide that misconduct has occurred, even if the employee make any response.
7.Not acting on complaints or allegations.
Sometimes complainants will want to speak “off the record”.