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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.
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, including drafting allegations
- 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
- 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.
Intended learning outcomes
A student who has successfully completed this subject will:
Be able to demonstrate judgment and technical skills as a practitioner in the field of workplace investigations, in the capacity of:
- external or internal investigator.
- advisor to employers or participants (complainant, respondent, witness).
- decision maker on investigation findings and outcomes.
Have the demonstrated capacity to:
- draft procedurally fair allegations.
- prepare the scope or terms of reference of an investigation and an investigation plan.
- identify the issues in managing participants, conducting interviews and gathering other information.
Students will also have:
- an advanced understanding of the legal principles applying to workplace investigations in Australia, focusing on recent developments in this field of law.
- an ability to critically assess how those legal principles inform and guide the conduct of workplace investigations in practice.
- an ability to determine the circumstances in which a workplace investigation is appropriate, compared with other processes.
- an advanced understanding of how the principles of natural justice impact the conduct of workplace investigations at each stage.
- the cognitive and technical skills to assess the information gathered as part of an investigation and make sound and defensible findings.
- the communication skills to clearly articulate and convey the allegations and findings in an investigation to participants and other stakeholders.
- the abiltity to be an engaged participant in debate regarding the relative merits of different structures and strategies for conducting a workplace investigation.
Last updated: 3 November 2022