WPL Investigations

With the recent changes to the Fair Work Act 2009, and generally, the rights of employees to take various matters to the Fair Work Commission, employers must ensure that they have the appropriate processes in place for the handling of workplace complaints.

Complaint handling at an employer level has always been subjected to outside scrutiny, for example by the Fair Work Commission and WorkSafe. However, this is likely to increase given the current climate. Accordingly, employers must be confident that the manner in which complaints are dealt with can withstand such scrutiny.

Not only does this mean that organisational policies and procedures must be adequate and clear, but that the employer must have a capacity or willingness to conduct investigations.

Preliminary Investigation

Generally speaking, a preliminary investigation should be considered when a complaint is made, to assess and determine not only the nature of the complaint but also whether a formal investigation needs to be conducted. The majority of complaints will be able to be resolved at an informal level, that is, by mediation or through other internal processes.

The questions which need to be asked at a preliminary stage are: “Is the complaint genuine?” or “is the complaint serious?” When these questions are answered, the employer will be able to make a more informed decision regarding whether the matter needs to be investigated formally.

Further, questions such as: “How does a formal investigation impact on the employment relationships?” and “are formal processes and findings conducive to a continuing employment relationship?” also need to be considered in making a determination regarding an investigation.

Role of Investigator

The employer needs to provide the investigator with a clear brief, including whether the finding of facts includes the making of recommendations.

The investigator must be independent and impartial and conduct the investigation without bias or prejudgment. Confidentiality must be maintained and information shared on a ‘need to know’ basis. The investigation must be fair and thorough, whilst keeping in mind that time is often of the essence. Adherence to the policies and procedures of the employer is essential.

Role of Workplace Legal

WPL is an independent, incorporated legal practice. It is staffed by lawyers with extensive experience in the health sector. It can assist you to ensure that any investigations are robust and capable of withstanding outside scrutiny.

If you have any questions, please feel free to contact Ignatius Oostermeyer, Megan Taberner or Natasha Fletcher on (03) 9861 4055 should you require advice.

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