eils seminar: workplace investigations

WORKPLACE INVESTIGATIONS

Emma ThorntonGiri SivaramanMichelle James

Workplace Investigations - June 2016

2

OUR PRACTICE AREAS

• Work injuries (WorkCover Qld & self-insured)

• Road accident injuries

• Public liability and faulty products

• Superannuation and insurance claims

• Employment and industrial law

• Asbestos, dust disease and skin cancer claims

• Medical negligence claims

• Wills and estates


3

OUR OFFICES


4

SERVICES FOR UNION MEMBERS

We provide client union members with:

• Free first consultation and advice

• Free basic Wills for members and their spouses

• Reduced-fee hearing loss tests

• No win, no fee*

5

WORKPLACE INVESTIGATIONSEMMA THORNTON


6

OUTLINE OF TODAY’S PRESENTATION

1. Types of workplace investigations

2. Legal basis for workplace investigations and cases that have considered investigations

3. Tips, Flaws and traps

4. WorkCover investigations and methodologies


7

OVERVIEW

• Increasingly used by organisations to address a range of issues

• Often, part of a system of behavioural compliance in an organisation

• Frequently used to exit an employee

• Their conduct varies widely – very different methods and processes used

• Often unregulated in the private sector


8

TYPES OF CONDUCT INVESTIGATED

• Bullying

• Harassment

• Breaches of discrimination law

• Victimisation

• Policy or code of conduct breaches

• Values or behaviour breaches

• Failure to comply with lawful and reasonable directions

• Under-performance

• Fraud

• Workplace health and safety incidents

• Other workplace grievances


9

LEGAL BASIS FOR INVESTIGATIONS

Some example sources supporting the legal basis for undertaking investigations include:

• Employment contracts

• EBAs

• Workplace policies

Supplementary materials can also support those sources:

• Legislation such as the Public Service Act 2008 (Qld) in the case of public sector workplace investigations


10

LEGAL BASIS – ENTERPRISE AGREEMENTS

EBAs may contain management of conduct clauses, which can include clauses dealing with the investigation of that conduct, setting out:

• procedural steps

• timeframes

• rules for appointing an investigator

• employers’ rights after a finding is made


11


Breach of EBA

• Breaches of terms in EBAs prohibited under s50 of the Fair Work Act

• Civil penalty provision

• penalties for each breach: $54,000 for corporations; $10,800 for individuals

• Federal Court or Federal Circuit Court can make an order under s 545 of the FW Act if satisfied a person has contravened civil remedy provision, eg: injunction


12


• Provision for investigations and disciplinary action in Agreements themselves

• Consider dispute resolution clauses

• Prosecute breaches in Court


13

QLD PUBLIC SECTOR LEGISLATION: DISCIPLINARY ACTION AND APPEALS

Public Sector Act 2008 (Qld):

• Chapter 6 sets out grounds for disciplinary action that can be taken and the power to impose a sanction.

• S190 provides for natural justice obligations.

• Chapter 7 establishes appeal rights for most disciplinary decisions (except for termination of employment) within 21 days of notice being provided.

• Public sector appeals of some disciplinary decisions are heard and determined by QIRC members.

• Code of Conduct for the Queensland Public Service, QPS Commission Disciplinary Guidelines and Department-specific policies and procedures.


14

CTH PUBLIC SECTOR LEGISLATION: DISCIPLINARY ACTION AND APPEALSPublic Service Act 1999 (Cth):

• Section 15 sets out a range of potential disciplinary actions where a breach of the Code of Conduct has occurred

• Section 33 provides for review of an APS Action

Public Service Regulations 1999 (Cth)

• Reg 3.10 provides powers of suspension

• Part 5 addresses reviews of Agency Actions

Australian Public Service Commissioner's Directions 2013 (Cth), a statutory instrument, provides procedural requirements for handling of performance and conduct issues at Chapter 4 and 6


15

CASE STUDY #1

Burnett v Eastern Health [2015] FCA 1247

Case: Nurse Unit Manager employed by Eastern Health

Covered by the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2012-2016

• cl 11.11 of the EBA deals with ‘Discipline’

• Sets out procedure to be followed where employer had concerns about an employee’s conduct or performance constituting misconduct, including:

• conducting a ‘fair investigation’

• providing the employee with allegations in writing

• ‘having proper regarding to procedural fairness’, including:

• providing the employee with any material forming the basis of the concerns and any allegations against them


16

BURNETT V EASTERN HEALTH CONT.

Alleged to have engaged in misconduct, and was provided with summary of 11 “serious issues” said to necessitate formal investigation, including:

• Clinical changes are implemented without any consultation with medical staff

• Staff are extremely fearful of being admonished if they follow medical orders which they know you do not agree with

• Medical staff feel they cannot use their experience and judgement to make treatment decisions which they know you will disagree with

• You have failed to uphold Eastern Health’s values

The nurse was suspended from duty on full pay.

17


• Not given specific allegations (including names, dates and descriptions of conversations or actions) or relevant documentation, despite request for them

• Commencement of investigation – orally responded to some “allegations”

• 9 “allegations” substantiated; 2 “allegations” partially substantiated

• Employee advised of intention to terminate her employment

• Maurice Blackburn begins acting

• No reasonable opportunity to respond because “allegations” not sufficiently particularised

• No provision of materials relating to the allegations and findings

• Formal response provided – substantially denied allegations

• Employer finds serious misconduct and moves to terminate employment

18


Proceedings commenced in Federal Court for injunction to prevent termination

• Bromberg J:

• Evidence suggests that there is a strongly arguable case that Eastern Health did not comply with the requirements of clause 11.11 [at 38]

• To comply with the requirements, Eastern Health needed to provide employee with “sufficient particulars of each allegation raised against her to enable her to understand the allegation so she could have a reasonable opportunity to answer it” [at 39]

• Evidence does not sustain a justification for Eastern Health’s failure to provide the necessary detail as required under the clause [at 45]

• Termination based on a flawed investigative process would itself be a contravention of clause 11.11 and a contravention of s 50 of the FW Act [at 47]

• Injunction granted

19

LEGAL BASIS – WORKPLACE POLICIES

• Many mid- to large-sized workplaces have policies dealing with misconduct and its investigation

• Content of the policy will usually favour the employer, e.g. by providing employer with a wide scope with respect to the:

• Matters to investigate

• Type of investigator appointed

• Process to be undertaken

• Breach of policy

• Lawful and reasonable directions for employees – breaches can lead to disciplinary action

• No consequences for employer breach unless policy incorporated into employment contract


20

CASE STUDY #2

Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177

Romero was employed as a Maritime Officer under a letter of engagement which included the statement ‘all Farstad Shipping Policies are to be observed at all times’.

Farstad had a Workplace Harassment and Discrimination Policy which set out:

• the procedure by which employees could report complaints

• the manner in which Farstad would review the complaints

Romero had a falling out with the Captain, was relieved from duty and sent an email to Farstad alleging the Captain had subjected her to bullying.

Farstad treated the email as a formal complaint and commenced an investigation.


21

ROMERO V FARSTAD SHIPPING CONT.

The investigation centred on allegations raised by the Captain as to Romero’s competence, capacity and temperament.

Federal Court

• Romero commenced proceedings in the Federal Court for breach of contract. It was argued Farstad had breached her contract by not complying with the policy.

• Not successful at first instance.


22

ROMERO V FARSTAD SHIPPING CONT.

Appeal to Full Court

• Held the policy formed part of the contract

• Clear from the language of the policy that it imposed mutual obligations. In return for employee compliance, Farstad gave an assurance that complaints of non-compliance would be treated in a certain way, which they did not do.

• Policy breached by not contacting Romero and explaining her options, failing to properly document the investigation and a ”general failure to carefully and systematically investigate the complaints of Ms Romero”.

23

CASE STUDY #3

Leyshan v Wyndum City Council [2013] FWC 7024

• The Council engaged a private investigator to investigate a ‘target’

• In the course of investigating the target, the investigator commenced an investigation of Leyshan

• The subsequent dismissal of Leyshan was harsh, unjust and unreasonable on account of factors that included:

• the Council’s unquestioning and uncritical reliance on the investigator’s report as the basis for the allegations without going behind it or conducting their own investigation as required by their Conduct and Performance Management policy.

• the employer’s evidence that they had not read the applicant’s written response at the time of making the decision to dismiss him – despite asserting otherwise in the letter of termination.


24

CASE STUDY #4

Szentpaly v Basin Sands Logistics Pty Ltd [2013] FWC 4213

The investigator approached the applicant for an impromptu discussion and he was not put on notice about the matters of concern or provided with a considered opportunity to respond.

Gregory C held:

‘I am not satisfied BSL’s investigation of what occurred enabled it to actually be in a position to establish, at the time it made the decision to terminate Mr Szentpaly’s employment, whether it had a “valid reason” or not. This occurred because that process of investigation did not involve, in particular, a detailed exploration with Mr Szentpaly about what actually occurred.’


25

CASE STUDY #5

Dragan Marijan v Rail Corporation New South Wales t/as RailCorp [2013] FWCFB 15

In refusing permission to appeal, the Full Bench of the Commission found that the delay in a 3 year investigation into misconduct did not, on the evidence, amount to a condoning of the conduct alleged.


26

CASE STUDY #6

Panera v QANTAS Airways Ltd [2015] FWC 4527

An employee was investigated and terminated for breaching ticketing policies delivering substantial financial benefits to others.

Providing extensive and serious allegations to the employee and requiring a response within 24 hours was considered to be failing to afford the employee an adequate opportunity to respond.

However, the Commission held that any further opportunity would not have changed the outcome given the nature and seriousness of the misconduct.


27

CASE STUDY #7

Deeth v Milly Hill [2015] FWC 6422

An apprentice was charged with a serious offence and then terminated.

The employer was told by some customers and staff that they wouldn’t be happy if the apprentice was still employed at the business.

Obtaining this information was not found to be a reasonable investigation.

A reasonable investigation is necessary to have a reasonable basis for determining whether the conduct is sufficiently serious to warrant dismissal.


28

CASE STUDY #8

White v Asciano [2015] FWC 7466

A Train Driver left a co-driver behind when the train stopped.

He claimed there was a misunderstanding as he thought the co-driver was using the toilet on the train.

The driver was terminated for intentional safety breaches following an investigation by an investigator.

The investigator misrepresented what the co-driver said in her interview and recorded that she said: “I am going to the toilet, don’t leave without me.”

The insertion of the fictitious words and the employer’s reliance on those words was a fatal error. The employee was reinstated.

29

CASE STUDY #9

OSMOND v St Vincent’s Hospital [2015] FWC 7677

A Security Guard made a complaint of inappropriate touching of a patient by a colleague.

He was supported in his account by a co-worker.

When he wouldn’t make a statement to police after the hospital reported it, the hospital engaged an external investigator to investigate the employee for making a false complaint.

The investigator found that the employee had maliciously and falsely accused his co-worker.

The FWC held that the investigator’s findings were flawed and the conclusions reached were not available to them on the evidence.

Therefore there was no valid reason for the termination and it was also unfair because the co-worker who supported the complaint was not disciplined.


30

CASE STUDY #10

BHP Coal t/a BMA v Schmidt [2016] FWCFB 72

On appeal the Bench found that on the totality of the evidence, the employee had an opportunity to respond to allegations.

The employee argued the investigation was pre-determined.

The Bench held that whilst an employer should retain an open mind and consider employee responses, that if serious misconduct is evident from an investigation that an employer cannot be expected to have no leanings or inclinations as to likely sanctions.

The Commissioner failed to consider the entire process which allowed opportunities throughout the investigation process for the employee to respond to the allegations.


31

CASE STUDY #11

Kirkbright v K&S Freighters [2016] FWC 1555

An employee was investigated for misuse of a company fuel card and dispatching freight without paperwork.

He was called to a meeting and terminated.

There was a valid reason for termination but the lack of procedural fairness was a substantial matter.

The employee was not advised the investigation was taking place, he was not given an opportunity to consider the claims against him, or to provide an opportunity to respond, nor was notified of the reason for his dismissal.

The Commission held that if an open investigation had been undertaken, an alternative penalty to termination may have been applied.


32

CASE STUDY #12

Pham v Sommerville [2016] FWC 2267

A worker was accused of misconduct by other employees.

The HR Manager investigated the claims but was found:

• Not to have taken a statement from the employee;

• To have failed to give the employee an opportunity to respond to the allegations;

• Not to have questioned anyone that the employee suggested could support and corroborate her story and evidence; and

• Not to have discussed the allegations with the employee until the day of her dismissal

Held: the dismissal was harsh and unreasonable due to procedural flaws.

33

Questions?

34

Morning Tea

35

TIPS & TRAPSGIRI SIVARAMAN


36

PROCEDURAL FAIRNESS

There may be limited implied rights to procedural fairness, in the contract of employment though this may not always be clear. See, Bartlett v ANZ Banking Group Limited (2016) NSWCA 30.

Express right may exist in contract or industrial instrument.

Unfair dismissal laws also give rise to procedural fairness protections. See s387 of the FWA, which requires notice, an opportunity to respond and warnings for unsatisfactory performance.


37

PROCEDURAL FAIRNESS

Ideal procedural fairness looks like:

• Sufficiently particularised allegations.

• An explanation as to the basis under which the investigation will occur (ie. the policy / procedure / workplace instrument / legislation).

• Outline of the process the investigation will follow, including the timeline/s, and updates along the way.

• An impartial decision maker.


38

TERMS OF REFERENCE (OR SCOPE)

These can be a tool used against an employee.

Often set, without consultation with the employee, by asking “what is the breadth necessary to get the outcome which is in the best interests of the organisation?”

If set widely enough, the scope will allow consideration of:

• The complainant’s conduct and behaviour; and

• Counter-allegations against the complainant.


39

TERMS OF REFERENCE (OR SCOPE)

What you can do:

• Ask for confirmation of the terms of reference.

• Assess whether the scope is appropriate.

• If not, demand an explanation as to why it is set so wide or so narrow – insist on changes if it doesn’t look right.


40

PARTICIPATION AS A REASONABLE AND LAWFUL DIRECTION

• Likely to be a reasonable and lawful direction to the employee.

• Implied term in an employment contract.

• A wilful refusal is a breach of the obligation of an employee.

The duty to follow a direction to participate in an investigation may also be an express obligation contained in the contract of employment or an enterprise agreement.


41

REFUSAL TO ANSWER QUESTIONS

In general terms, employees are obliged to answer questions from their employer about matters within the scope of their employment.

An employee is obliged to answer the questions honestly.

An employee does not breach the duty to answer honestly if they refuse to answer questions about matters outside of their employment.

The duty on the employee to answer has a corresponding duty on the employer to ask questions that are fair and reasonable – Patty v CBA (2000) FCA.

The duty to ask reasonable questions is especially important if there are pending criminal proceedings.


42


Grant v BHP Coal Pty Ltd - [2014] FWC 1712 and appeal [2014] FWCFB 3027

At first instance Spencer C found that his conduct in refusing to answer the questions was ‘inconsistent with an investigation interview. … To require all questions to be put in writing would unreasonably restrict the purpose of the process. … The stance by the Applicant, gave further insight into the Applicant’s approach to the employment relationship.’


43


And on appeal in rejecting the ground of appeal arguing the worker was not obliged to obey an order which required him to incriminate himself, the Full Bench found:

‘We do not construe a workplace investigation interview intended to inquire into an employee’s conduct as attracting the application of such principles as asserted. This is particularly so when the single query put to the employee (which in effect was to explain his reason for not attending the medical appointments as directed) was material to the employment relationship.’

They also commented that ‘had the questions being posed had some unusual character or complexity to them it might be reasonable to seek to have a meeting adjourned and the questions or allegations particularised. But this was not the case here.’


44

ALLEGATIONS

An employee should be provided with detailed allegations prior to the investigation beginning.

Provision of vague allegations:

• Ambush situation – say you will be provided with detail at interview

• When employers are not fully aware of the facts or when seeking “wriggle room” to build the case, eg:

• Did your client sexually harass X on the evening of 16 May 2016?

Responding to the allegations – verbally or in writing:

• Issues in responding verbally?


45

ALLEGATIONS CONT.

What you can do:

• Request additional detail and specific particulars if the allegations are vague

• Ensure the employee is provided with the opportunity to respond to the allegations and any new allegations coming out of the investigation

• Consider whether the employee is better placed submitting a written response to the allegations


46

INVESTIGATION FINDINGS AND REPORT

• The findings only give a summary of the investigator’s conclusions

• Employee is entitled to be informed of the outcome of the investigation and the reasons that outcome was reached. Understanding outcome/reasons can also aid employee’s mental health

• The report is what ties everything together – without it, you wont know:

• What the evidence was

• Whether the employee’s evidence was properly taken into account

• How the evidence was assessed by the investigator

• If and how the scope contributed to any adverse findings

• Whether the decision-maker’s decision is fair


47

INVESTIGATION FINDINGS AND REPORT CONT.

What you can do:

• Insist from the beginning for a copy of the report and findings

• If the answer is no, cite the procedural fairness disadvantages this will raise.

• This will put the employer on notice that procedural fairness will be monitored and fought hard for from the beginning

• If the answer is still no, request the evidence be reduced to statements which must be signed and reviewed by those giving evidence

• This will put pressure on the employer to form a decision only on the basis of the evidence you have reviewed

• It will also provide you with an opportunity to challenge the decision if you think it is unfair based on the evidence you’ve reviewed


48

MENTAL HEALTH ISSUES

By the time an employee complains about another employee’s conduct, the complainant’s health is likely to be affected.

• Experiences shock, trauma, isolation, dislocation. Mental health declines. Then faces investigation.

• Consider bullying, harassment, relationship breakdown, other misconduct situations.

49

THE EFFECT ON THE EMPLOYEE

• Often given no notice of an investigation

• May be suspended, often immediately

• Perception and practice that suspension goes hand in hand with an investigation – they are distinct issues

• Employers rely on OHS obligations without considering individual situation and/or risk

• Difficult for respondent to return to workplace once investigation concludes

• Lawfulness of suspension

• Duration of suspension

• Communication of suspension

• In what circumstances will the suspension be lifted

• What support will be provided to the respondent upon return


50

THE EFFECT ON THE EMPLOYEE CONT.

Directed to maintain confidentiality:

• Standard for employer to issue a direction for respondent to maintain confidentiality

• Exposure to disciplinary action for failure to comply

• Can, and in practice often does, extend to preventing any communication between respondent and their colleagues and external stakeholders

• Sudden disappearance and silence by respondent sets rumour mill into over drive

• Damage to reputation


51

THE EFFECT ON THE EMPLOYEE CONT.

Directed to maintain confidentiality:

• Lesser confidentiality obligations for complainants and witnesses and no commensurate consequences for those who fail to maintain confidentiality

• Mental health implications

• Given few specifics about the investigation duration or the process


52

CASE STUDY

Nicholich v Goldman Sachs JB Were Services Pty Ltd [2006] FCA 784

Federal Court found:

• Management did not take action to arrange meetings in the location of the employee

• One month was allowed to elapse before Nicholich’s letter of complaint was shown to the Manager, the subject of the complaint

• Relevant persons named in the complaint were not interviewed

• Two months passed before Nicholich was invited to discuss the complaint

• The meeting did not address the concerns raised in the complaint

• the meeting was substantially a counselling session about Nicholich’s stress


53

CASE STUDY CONT.

Court attributed the applicant’s major depressive disorder primarily to GS’ mishandling of the grievance and the botched investigation of it, rather than the grievance itself:

“Assessing the expert evidence as a whole, I do not think it supports the respondent’s theory that Mr Nikolich ’s psychological problems were, and are, the result, only or primarily, of the reallocation decision made by Mr Sutherland. I think the better view is that they stem more from the aftermath of that decision, in the way Mr Nikolich was treated by Mr Sutherland and the failure of Ms Jowett and others to give him proper support in handling his problems with Mr Sutherland. Certainly that seems to be the view of Dr Jamieson and Dr Lowden, the two experts who know him best. I conclude, therefore, that the breaches of the three relevant sub-sections of WWU caused the psychological damage …This included a major depressive disorder.”


54

SHOULD THERE BE AN INVESTIGATION?

Does the employee want an investigation?

• Often decision is out of their hands

• Organisation’s dispute resolution procedure may require an investigation in certain circumstances (i.e. misconduct, OHS breach)

Relevant considerations

• Mental health issues

• Disruption in workplace

• Seriousness of the underlying issue


55

SHOULD THERE BE AN INVESTIGATION? CONT.

Some alternatives include:

• Mediation

• Counselling

• Performance management

• Training

Not conducting a workplace investigation is highly under-rated.

56

THE INVESTIGATOR

Whether someone in-house, a lawyer or a “trained” investigator, there are issues, including:

1. In-house personnel

• Not formally trained to undertake investigations and unlikely to have the required skill

• Not independent and unbiased – may already know the people and the issues and may work to an agenda

2. Lawyers

• Not formally qualified to undertake investigations

• Look for the legal issues and risks – this influences their advice to the client – they may go into the investigation with an agenda

• Cannot be truly independent and is problematic if the matter turns litigious


57

THE INVESTIGATOR CONT.

3. “Trained” Investigators

• More often than not, not formally trained – operate unregulated

• Can be influenced by the employer or lawyers

• Conflicted because may want to “please” the client to get repeat business

• Varying skills of competence in particularising allegations and report writing – necessitating legal involvement


58


Regulation of workplace investigations:

• Largely unregulated in the private sector

• Security Providers Act 1993 (Qld):

• deals with private security industry

• investigator broadly defined and must hold a license

• lawyers are exempt


59


What you can do

• Ascertain the identity and qualifications of the investigator

• Outline any issues you identify with the choice of investigator

• Insist on someone appropriately trained, skilled on the topic matter and independent

60

INVESTIGATORS’ INDEPENDENCE

AMWU v Visy Packaging Pty Ltd (No 3) (2013) 216 FCR 70

Federal Court held that the investigation and disciplinary action constituted adverse action in breach of the FW Act.

Court rejected Visy’s argument that investigation was independent and impartial because:

• Visy framed the questions that would be asked by the investigator

• Visy management attended the investigator’s interview with the employee

• Visy’s solicitor was in communication with the investigator during the investigation and emailed the investigator with ‘some questions for clarification purposes that I would like to put to you, in case this leads to you updating or reviewing the report’

• Visy intervened in the investigation, revising the investigator’s report in order to ‘strengthen it’


61

ROLE OF LAWYERS

Often employers engage law firms in investigations. Involvement can be overt or covert.

Overt

• As the “independent” investigator

• Organisation’s lawyers engage investigator under LPP to:

• Determine the factual matters associated with the complaint / issue; and

• Verbally report on organisational risks uncovered by the investigation.

• Under this scenario, the lawyers have visibility


62

ROLE OF LAWYERS CONT.

Covert

• To project manage the investigation on behalf of the employer, without the employee’s knowledge

• Organisation directly engages investigator to determine the factual matters associated with the complaint / issue

• Lawyers project manage the process, work alongside the employer and investigator to produce the desired outcome

• They are invisible to the parties to the investigation


63

LEGAL PROFESSIONAL PRIVILEGE

Privilege claimed over evidence collected for the dominant purpose of providing legal advice or legal services in relation to existing or anticipated litigation.

It is used in investigations to protect the findings from access or disclosure.

Privilege allows the lawyers to:

• Set the scope of investigation with the legal risks in mind

• Initially brief and liaise directly with investigator throughout the investigation

• Influence and control direction of investigation

• Communicate with employer about investigator’s interim findings

• Make changes to draft findings

• Be informed of and control organisational risk


64

LAWYERS: THE DARK ARTS OF WORKPLACE INVESTIGATIONS

“Conducting an investigation under cover of legal professional privilege may protect an investigation report from disclosure requirements. Your legal advisor should be contacted early in the investigation process if legal professional privilege is to be claimed.”

“Full report to the person or people who will make disciplinary decisions or decide other outcomes arising from the investigation … provide the complainant with only a summary of the factual findings and not the detail of the outcomes.”


65

PROTECTION OF DOCUMENTS THROUGH LPP

Mark Kirkman v DP World Melbourne Ltd [2016] FWC 605

Kirkman was employed by DP World

• His employment was terminated – engaged in bullying and harassment

• Kirkman lodged an unfair dismissal application

• Kirkman applied for production and inspection of employer’s documents

• Issue considered by the Full Bench on appeal

Employer argued:

• Documents contained communications subject to LPP

• The investigation was an internal investigation conducted by the employer and the investigation report was compiled by the independent investigator appointed by its lawyers


66

PROTECTION OF DOCUMENTS THROUGH LPP CONT.

The employee argued:

• Report would have been prepared irrespective of intention for DP to obtain legal advice

• The use of the report was not to provide legal advice but to establish a “factual finding” regarding the employee


67

PROTECTION OF DOCUMENTS THROUGH LPP CONT.

Full Bench decision

• Dominant purpose of report at time document created was to assist in provision of legal advice to employer

• Use to which a document is put after it is brought into existence is immaterial (Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501)

• Report protected by privilege

• Privilege not waived by disclosing some material from report to employee – disclosure occurred to give employee opportunity to respond to allegations


68

OHS REGULATORS

Despite thousands of complaints being made to OHS regulators each year, very few cases are investigated and prosecuted.

In the House of Representatives Standing Committee on Education report ‘Workplace Bullying ‘We Just Want It To Stop 2013’, several participants noted the inefficacy of the OHS system in combating workplace bullying, including:

• SafeWork SA submitted that no prosecutions for workplace bullying had been pursued in South Australia and very few had reached the stage of being considered for prosecution

• WorkCover New South Wales submitted that it did not know of any bullying prosecutions which related only to psychological injury

• The Director of NT WorkSafe from 2002 to 2008 submitted that the regulator did not prosecute anyone in relation to psychological behaviours like workplace bullying

69

MODEL WORKPLACE INVESTIGATIONS

Will:

• Abide by processes in applicable policies, contracts, enterprise agreements or legislation.

• Appoint an investigator who remains independent from the employer and its legal representatives.

• Provide sufficient procedural fairness to the employee.

• Ensure all parties observe confidentiality.

• Protect the independence of the investigation by not allowing the employer to influence the investigator, either directly or through its legal representatives.

• Appoint a truly impartial decision maker to act on the investigator’s findings.

• Be underpinned by a strong commitment to protecting and promoting mental health.

70

Questions?

71

This information is prepared for the purposes of the seminar conducted on June 15th 2016 only. The

content of this paper is not legal advice. It is information of a general nature. Readers requiring

legal assistance for their specific circumstances should not rely on the content of the foregoing but

should take appropriate legal advice.

1800 810 812 (business hours)

mauriceblackburn.com.au