Conducting Workplace Investigations (LAWS90086)

Complaints of bullying, harassment, discrimination and other interpersonal grievances have become commonplace. Employers’ disciplinary decisions in relation to misconduct are also subject to increased scrutiny by courts and tribunals. A fair and thorough workplace investigation provides the foundation for taking, and if necessary defending, disciplinary and other action by an employer in response to any workplace issue. This subject explores the current legal framework applying to workplace investigations in Australia and proposes a structure for conducting investigations to minimise risk.

The lecturer in this subject has over two decades of experience conducting independent workplace investigations, coaching and advising clients on managing in-house investigations and appearing as an advocate in contested matters.

This subject analyses the current law in Australia governing the investigation of complaints and conduct concerns in the workplace. It also explores various structures for undertaking effective and fair workplace investigations in this rapidly developing area of practice.

Principal topics include:

• Analysing the legal framework (federal and state) impacting upon workplace investigations in Australia
• Understanding what a workplace investigation is, and distinguishing investigations from other workplace processes
• The basic structure of an investigation
• Identifying the relevant scope of an investigation
• Establishing the appropriate foundation for conducting an investigation, including considerations in the selection of the investigator and work arrangements during the investigation
• Addressing other threshold issues prior to commencing an investigation, including appropriate roles of stakeholders
• Gathering information relevant to the scope of the investigation from people and from documents/things
• An examination of relevant principles of procedural fairness/natural justice – the bias rule and the hearing rule
• Making findings – evaluating the information gathered; applying the relevant legal tests, burden of proof and standard of proof and assessing credibility
• Applying the findings of an investigation in a disciplinary context, the role of the decision maker and implementing and communicating outcomes
• Learnings from overseas jurisdictions and potential for future developments in the field.