May 2018

Workplace investigations – a critique

Complaints, disputes and incidents needing employer attention are inevitable in today’s workplace. When they happen, employers need to respond quickly, not only to restore workplace relations but also to simply get on with business.

Making decisions in such cases can be complex and challenging. As a result, we have seen employers increasingly turn to workplace investigations in response to employee claims and complaints.

Therein lies a potential problem. The routine use of investigations not only discourages alternative approaches but may also reduce opportunities for good business decisions and outcomes.

One reason is the language associated with investigations, which encourages an adversarial environment. Applying rules of evidence (like the “Briginshaw standard”) imposes a burden that does not always lead to good or timely decisions.

In this bulletin we:

  1. examine whether it is appropriate to always respond to a complaint or claim with an investigation

  2. look at an aspect where decision-making in an investigation is often complicated, unnecessarily.

A non-investigative approach

Employees could be forgiven for believing they are entitled to have all claims and complaints investigated.

One judgment stated that on receipt of a claim or complaint “it is reasonable for [an employer] to consider it [has] a duty to investigate” (Blow v SBD Services Pty Limited [2013] FWC 5733). Similarly, and in the context of bullying allegations, it has been stated that an employer has “a responsibility to investigate” (see S.B. [2014] FWC 2014 at [18]).

In practice, and regardless of their legal obligations, most employers would indeed investigate a formal complaint of sexual harassment or bullying and a denial of the allegations by the named employee. That is what happened in East Coast Pipeline Pty Ltd v Workers’ Compensation Regulator [2016] QIRC 101.

The Queensland Industrial Commission was critical of an employer responding to such complaints with a formal investigation. This approach led to the accused employee seeking workers compensation for the psychological injury triggered by the allegations and investigation.

The issue was whether the investigation was reasonable management action. The Commission found that formalising the complaints, conducting formal interviews and a two-stage interview process, recording meetings, requiring confidentiality and the signing of records was “unnecessarily forensic or elaborate”. While some may consider the approach “self-evidently reasonable”, the Commission felt otherwise. The formal investigative approach did not focus on resolution of the issue, but instead polarised staff and made a dysfunctional office even more unworkable.

The lesson here is that workplace investigations into disputes and grievances between colleagues can be damaging and counterproductive to restoring appropriate work relations. Neither the complainant nor perpetrator (to use descriptors that are also counterproductive) are likely to be satisfied with the outcome. As Mr Kimber SC astutely observes:

Investigators’ reports inevitably identify the “winners” and the “losers” and make findings and comments about them that often will, unless a termination or transfer of the “loser” results, provide a real obstacle to the restoration of a harmonious working relationship between the parties to the dispute. Hence, the real attractiveness of utilising mediation or more informal “facilitation” processes in the workplace context, instead of, or at least prior to, any investigation. If such processes are used it is likely that an investigation will then be unnecessary or, if not, will at least be narrower (more focused) in scope and hence prove to be more useful and much cheaper.

Workplace investigations are just part of a process and do not themselves resolve conflicts (unless the employment of one of the parties is terminated). As such, alternatives should be considered from the outset.

The relevance of Briginshaw to workplace investigations

The High Court in Briginshaw v Briginshaw (1938) 60 CLR 33 gave guidance on how it is that a court may find that something happened. Its oft-quoted statement reads: The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences...

This has led industrial tribunals to make statements such as “the allegation [must be] established with … comfortable satisfaction”: Paul Barnett v Qantas Airways Limited [2006] AIRC 698. It is also said that Briginshaw “require[s] the respondent to make out its case in a convincing way”: Budlong v NCR Australia [2006] NSWIRComm 288. In the reaching of any decision, the “gravity of the consequences flowing from a particular finding” is a consideration. Dismissal is a serious consequence, and hence, it is said, Briginshaw is to be followed.

Some investigators have told us that the value of applying Briginshaw is to impose at an early stage the same standard that would be applied were the matter to proceed to a contested hearing. If the investigator is not satisfied the Briginshaw standard has been met, then how is a tribunal or a court to be satisfied if the decision is disputed? However, this approach pays no attention to the differences between an investigator and a court or tribunal (or their different experiences, skills and qualifications).

An investigator’s work is quite different to a court’s work. There may be identified concerns or even some allegations, but the reality is that nothing much is yet known, and the investigator’s task is to find out. There are no adversarial parties. There have been no court pleadings. There are no statements upon which witnesses will be cross-examined. What may be found by the investigator is unknown and unconstrained by the scope of a particular dispute.

The utility of an investigation that pays too much attention to Briginshaw must be questioned. Worrying about the amount of evidence required to overcome considerations of the gravity of the consequences will lead to mistakes. And what of the gravity of the consequences of not making a decision?

Complaints of ongoing sexual harassment or bullying are often matters of word against word. Given the gravity of the consequences of an adverse finding, an investigator following Briginshaw might feel compelled to find such allegations “not substantiated”. Does the employer then take no action? The consequences of no action may be that the sexual harassment or bullying continues.

These are just too many differences between the work of an investigator and that of a court or tribunal to support any consideration of Briginshaw in an investigation.

McHugh J, during the course of the hearing of an appeal, astutely said:

The problem is that there are only two standards of proof: balance of probabilities and proof beyond reasonable doubt. I know Briginshaw is cited like it was some ritual incantation. It has never impressed me too much. I mean, it really means no more than, “Oh, we had better look at this bit more closely than we might otherwise”, but it is still a balance of probabilities in the end.

In our view, when making a decision employers are not bound by concepts of standards of proof. They can consider the array of information to hand. Although they may consider whether the decision can be defended if challenged, that does not require the application of Briginshaw. A wise employer will carefully attend to the information gathered in a common sense way, and will not be caught up in evidentiary concepts that tax even the well-paid lawyer.

Authors: James Mattson & Mark Paul

This bulletin is an extract of the award winning paper written by James Mattson and Mark Paul, ‘Workplace investigations: time to reform our thinking’, as presented to the Australian Labour Law Conference in Melbourne, November 2016.