Employers often fall into the trap of refusing to provide or providing too little information to employees during an investigation or show cause process. This is often to avoid showing their hand and further delays in the process as employees dispute every piece of information. Unfortunately, the rules of procedural fairness require that employees must have access to all relevant and pertinent information so they have a genuine opportunity to respond before being terminated. The recent case of Tucker v State of Victoria highlights the pitfalls of failing to provide sufficient information to the employee during the investigation process.
The Applicant was a senior solicitor at State Revenue Office (SRO). An investigation was conducted by SRO into allegations of harassment against female colleague and improper searches of customer records. Before any decision was made, he applied for interlocutory and permanent injunctions so they could not terminate him and also sought declarations that SRO did not comply with procedural fairness and information provision requirements under clause 21 of the relevant enterprise agreement. At first instance, the Associate Judge dismissed the proceeding and ordered Applicant to pay $199,681.46 and legal costs of Respondent. He was then terminated by SRO due to customer search allegations.
Main ground of appeal is that Judge made an error by failing to consider the lack of procedural fairness for the harassment investigation. SRO had engaged external third party to conduct harassment investigation. The Applicant only received a summary of evidence after the investigation. It was only after he pressed further that he received a redacted copy of the report. It was alleged that the failure to provide a full copy of the report breached procedural fairness.
It was argued that the redactions were valid because the information was protected on the grounds of privacy. Court agreed that at times it was necessary to protect a witness’ privacy especially if there is a risk to the health and safety, but only if information protected is identifying information ‘about’ the witness.
- Privacy laws cannot privilege
- A witness’s evidence;
- Investigator’s analysis of evidence; or
- Reasons behind investigator’s findings.
Therefore employees can be provided with redacted reports removing names or other identifying information where OHS issues are important – but not redactions that relate to key evidence and findings by the investigator.
Court found that SRO had denied him access to credible, relevant and significant information. Procedural fairness in an investigation involves many stages, including a stage where an employee is entitled to make meaningful submissions to dispute the findings. Denying the employee this opportunity meant that the parties were on uneven footing, as the employee did not have access to all information. Providing the employee the opportunity to respond during investigation was not enough. The Court found that “compliance with the principles of procedural fairness at one stage of a disciplinary process does not preclude a finding of noncompliance with those principles at a later stage of the process.” Ultimately a declaration was made that the Respondents failed to provide Applicant with procedural fairness in relation harassment investigations. It was strange that the cases proceeded to this stage, especially as the harassment investigation was unrelated to the reason for his termination.
- Comply with procedural fairness requirements
- Employees must get access to all relevant information and given genuine opportunity to respond
- Do not redact investigation reports unless information is necessary to deidentify witness
- The disciplinary policies and procedures were very onerous which increased the requirements for procedural fairness – ensure processes are not prescriptive to avoid breaching them!