Internal investigation employee rights reserved


Employers are required to prevent discrimination and harassment in the workplace. When an employee makes a complaint of discrimination, harassment, retaliation, or a violation of any law, an employer has a legal obligation to promptly investigate the complaint. The obligation may arise even if the employee is mistaken about whether a violation of law occurred. Conducting an investigation that complies with the law, while also protecting the company and complainant, can be challenging. The failure to conduct a comprehensive investigation can result in liability against an employer.


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WATCH RELATED VIDEO: How to Conduct an Effective Workplace Investigation

Investigations


In two recent cases, the employer's failure to afford procedural fairness resulted compensation orders and rendered unfair an otherwise valid reason for dismissal. During the unfair dismissal proceedings, the Commission accepted that the employee's failure to record a sale of shoes to the employee's friend and place the cash immediately into the till amounted to serious misconduct, justifying dismissal on notice. However, the Commission found the employer "mischaracterised this serious misconduct by describing it as theft".

In circumstances where the sale was subsequently recorded and the cash returned to the till, the elements required to establish the criminal conduct of larceny could not be found. Further, in correspondence with the employee, the employer described the misuse of the layby policy by the employee as "theft".

The Commissioner expressed a strong view that it "may assist the employer if it refrained from using strong, inflammatory language particularly involving allegations of criminality.

The Commission also noted that the employer applied a level of severity to the alleged misconduct that was inconsistent with it permitting the employee to continue to work.

The employer notified the employee of his dismissal by a letter handed to him during a meeting. The letter erroneously referred to attendance at the meeting by the employee's solicitor, when in fact a friend had attended as a support person. Commissioner Cambridge found that the letter had obviously been pre-prepared and demonstrated that the employer had a predisposed position in respect of the allegations it was supposed to be evaluating with an open mind during that meeting.

The Commissioner also found that the employer had formed an early view of guilt when it deliberately deceived him about the purpose for the first investigation meeting and mischaracterised the misconduct as theft. This point was also made in Roelofs v Auto Classic WA Pty Ltd [] FWC where the employee was "ambushed" by the employer at the meeting to discuss allegations about accessing inappropriate swimsuit websites at work. In Roelofs , the Commission was very critical of the employer's failure to provide an adequate opportunity to respond:.

In Jimenez , the finding of misconduct regarding the failure to record the sale and put the cash in the till established a valid reason to dismiss the employee, with notice. However, the procedural errors in dealing with the serious misconduct and the less serious misdemeanours made the summary dismissal unjust and unfair.

In Roelofs , the Commission accepted that the employee did access the alleged website and this alone amounted to a valid reason for his dismissal.

Interestingly, when considering the criteria in section g of the Fair Work Act in Jimenez , the Commission noted that an absence of a dedicated human resource specialist in a medium to large corporation was a "business choice" which did not excuse its deficient procedures.

The managers were subject to bullying complaints, media attention and union picketing. However, after a lengthy investigation into the complaints, they were found to be unsubstantiated. The managers claimed that due to the employer's breach of its duty of care, they suffered serious psychiatric illnesses. The Court of Appeal considered the investigation process, and the lack of support the managers received when the complaints were made, and during the investigations.

The Court found a duty of care arose once the employer understood that the investigations would be substantial and protracted, and it had adequate information to determine that its employees were vulnerable or distressed leading up to and during the investigation process. The employer should have known the employees were vulnerable to psychiatric injury in the circumstances. The Court found that there were several breaches of the employer's duty of care, which included:. The majority held that the medical evidence did not support the claims that the breach of the duty of care caused the psychiatric injuries.

There were significant discrepancies between the facts on which the medical expert proceeded and the facts that were proved at trial, so the Court could not determine that the breaches caused the psychological injuries.

In Applicant v Respondent [] FWC 1 July , the Applicant obtained access to workplace investigation documents relating to his alleged misconduct. He did this by relying on the Commission's power to order production under section 2 c of the Fair Work Act The Applicant sought the production of investigation summaries, records of interview and email communications about his alleged conduct.

The Respondent argued these documents were created for the dominant purpose of receiving legal advice from the Respondent's in house employment counsel and, therefore, were subject to legal professional privilege.

During cross examination, the Workplace Relations Advisor gave evidence that the documents would have been created whether legal advice was sought or not. The Commission found that the documents were created in the normal course of a disciplinary investigation and for the purpose of putting allegations to the Applicant.

The dominant purpose was for the inquiry into the complaint. The Commissioner noted that the fact a document is provided to a solicitor for advice is not determinative of the purpose for which it was created. These cases deal with internal investigations from a number of points of view and employers can draw some worthwhile lessons from them:.

Internal investigations require careful planning and implementation or they may create more problems than they solve. We bring together lawyers of the highest calibre with the technical knowledge, industry experience and regional know-how to provide the incisive advice our clients need.

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Employment Alert 22 Aug Putting the fair in procedural fairness how to conduct a workplace investigation. Legal Updates. The PDF server is offline. Please try after sometime. What you need to know Failures in a workplace investigation are prone to claims of unfair dismissal or adverse action, resulting in scrutiny by the courts and tribunals. Poorly conducted investigations, without adequate consideration of the respondent's need for support, can also ground claims such as breach of a common law duty of care and may result in an order for damages against the employer.

An employer has a duty to investigate alleged misconduct and a duty to support the employee whose conduct is under investigation, especially where the employer directs the employee not to attend work. Investigation documents and reports may face scrutiny in any proceedings. What you need to do Provide procedural fairness to all people involved in an investigation, especially the respondent.

Broadly speaking, this involves giving the respondent an opportunity to respond and the right to an unbiased decision. Frame allegations carefully so that they do not suggest a pre-determination of the issues.

Factually identify the alleged behaviour and explain why that conduct would breach a particular code of conduct or policy. Adopt caution in characterising the alleged conduct using legal labels such as assault, theft and harassment. Take care when preparing for a potential dismissal.

A pre-prepared letter may indicate a predisposed position. Where unfair dismissal risks exist, ensure compliance with the requirements in the Fair Work Act , such as that the employee has a support person present if he or she wishes. Keep accurate and clear records of witness interviews and other investigation documents.

These are likely to be required to be produced if the matter is litigated. We summarise some key principles from recent cases on the conduct of workplace investigations. These cases highlight instances where an employer's failure to ensure procedural fairness has been successfully challenged. Procedural failings override valid reason for dismissal In two recent cases, the employer's failure to afford procedural fairness resulted compensation orders and rendered unfair an otherwise valid reason for dismissal.

The procedural errors made by the employer have rendered what would have otherwise been an entirely fair dismissal with notice, to be an unreasonable and unjust summary dismissal. The concept of the need to provide an opportunity to respond … is … predicated upon the decision-maker approaching the issues … with an open mind ….

In this instance, the employer characterised the applicant's conduct as theft from the outset, and its subsequent treatment of any response provided by the applicant was contaminated by the predisposed view that it held. Pre-determination of findings The employer notified the employee of his dismissal by a letter handed to him during a meeting. Failure to give reasons for termination or opportunity to respond In Roelofs , the Commission was very critical of the employer's failure to provide an adequate opportunity to respond: the employee was not given details about the inappropriate website, when he was alleged to have access it the employee was not asked whether he had an explanation for the record on his internet browsing history; and the employee only became aware of the detail once the proceedings were commenced.

Multiple deficiencies in investigation process rendered dismissal procedurally unfair In each case, the Commission found that the employee had been denied procedural fairness.

This denial of procedural fairness by [the employer] was not merely a technical failure which common sense would suggest would not have changed the outcome. Lack of human resources specialist a business choice Interestingly, when considering the criteria in section g of the Fair Work Act in Jimenez , the Commission noted that an absence of a dedicated human resource specialist in a medium to large corporation was a "business choice" which did not excuse its deficient procedures.

Employer failed to provide adequate support The Court of Appeal considered the investigation process, and the lack of support the managers received when the complaints were made, and during the investigations.

The reasonable employer in the position of the respondent The Court found that there were several breaches of the employer's duty of care, which included: unsympathetic emails and communication restrictions; removing the managers from their roles without any support or explanation; not discussing the investigation process with the managers; and the employees not being assigned their own support person.

The free counselling service provided by the employer to all employees did not discharge the employer's duty towards the managers. Breach did not cause psychiatric illnesses The majority held that the medical evidence did not support the claims that the breach of the duty of care caused the psychiatric injuries.

Order to produce investigation records In Applicant v Respondent [] FWC 1 July , the Applicant obtained access to workplace investigation documents relating to his alleged misconduct. MAKING THE CASE: Insights from Geoff Giudice These cases deal with internal investigations from a number of points of view and employers can draw some worthwhile lessons from them: Although a lack of procedural fairness is not always fatal in unfair dismissal cases, it may be fatal if errors in procedure lead the Commission to conclude that the employee did not engage, or may not have engaged, in the conduct which the employer relied upon In conducting an internal investigation, an employer may be liable in damages at common law if an employee under investigation is not given adequate support during the process and as a result suffers injury, including psychiatric injury; and Documents used in an internal investigation will not be protected by legal professional privilege just because lawyers have been involved in their production — the question is whether the dominant purpose for the creation of the documents was receiving legal advice.

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Legal Updates

Our business and criminal lawyers have managed many types of investigations arising from serious allegations of workplace misconduct, all aspects of corporate ethical malfeasance and criminal acts. Claims of workplace misconduct have become increasingly prevalent, dominating news headlines globally. Complaints of sexual harassment, workplace intimidation and other types of employment-focused misconduct have become prolific in the advent of the metoo movement. At the same time, allegations of discrimination and white collar crimes such as theft, accepting bribes or kickbacks, misappropriation of funds, accounting fraud and tax fraud continue to multiply. Oftentimes, independent investigations of claims conducted by qualified, experienced and independent lawyers is an employer's best response. As misconduct claims increase and whistleblowers continue to step forward, many employers have sought to retain highly capable, neutral and independent counsel to investigate claims and guide their response. Employees may be far less inclined to seek legal remedies if they understand their employer took proactive steps to address their complaints, and demonstrate that management will not tolerate harassment.

When an employee or business partner accuses someone in your organization of illegal conduct, your first instinct should be to ask your.

Belinda’s top five tips for conducting an internal workplace investigation

The last 18 months have been quite a ride for employers. Between the call to arms of social justice movements, the inescapable and oftentimes unhealthy political discourse, and the chaos and uncertainty caused by a global pandemic, employers have been kept on their heels fielding the accompanying uptick in internal complaints. Internal complaints are not new to most workplaces, but the internal complaints now being voiced are palpably different. Indeed, the new wave of complaints seen by employers are more complex and nuanced, readily voicing concerns about systemic and pattern and practice discrimination which employers, in the eyes of the complainants, have perpetrated for far too long. The stark reality is that these complaints cannot be met with, or resolved by, routine and rehearsed investigation practices. This article offers some helpful tools to ensure your investigation is thorough and effective. First, it is of utmost importance to select the right investigator. The days of selecting the next employee relations member in the queue or speed dialing your jack-of-all trades, go-to investigator are waning. While the aforementioned persons may be adequately equipped to conduct the investigation, employers need to be extremely thoughtful in identifying the investigator most adept at handling the task. The right investigator will need to have a fundamental understanding of the political, cultural, and social shifts revolving around them as well as a keen level of discernment in how these factors overlay the concerns raised.


The Pandemic Changed How Companies Handle Internal Investigations

internal investigation employee rights reserved

August by Sara Goldsmith Schwartz. When an employer utilizes counsel to conduct an internal investigation, the employer needs to give careful thought to the standard disclosures that its attorneys provide at the outset of the interviews. We represent the company. These conversations are private, but the privilege belongs to the company and the company decides whether to waive it.

What's on Practical Law?

Internal Corporate Investigations

In this column on corporate employment issues, Philip M. Berkowitz, discusses the application of the work product doctrine to internal investigations. June 25, hereinafter Capital One , provides valuable lessons on how best to assure application of the doctrine. JPMorgan Bank , N. April 24, , also provides valuable lessons.


Conducting Internal Investigations

There will be times when your business faces an employee-related crisis. Perhaps one of your workers has complained of bullying and harassment. Maybe you have reason to believe an employee has stolen company property or engaged in some other kind of serious misconduct. While some employers choose to resolve such conflicts using internal resources, it can be wise to hire an independent third party to conduct an investigation. It eliminates bias, encourages employee openness, and ensures your employees view the process as fair. If you want the support of an external professional, we can help. We have both the legal and the HR expertise needed to complete a comprehensive workplace investigation, from the initial interviews to the final report summarizing our findings and recommendations. And for employers wanting to adopt sustainable employment workplace practices, our fair, respectful and impartial approach to investigations will promote this.

Whether questions relate to Fourth Amendment privacy rights, Weingarten rights, Association of Workplace Investigators (AWI); Association of Title IX.

A number of members of the team are very experienced in the Local Government and Healthcare sectors. We also deal with matters involving external regulators or the police. All members of the group are specialists in employment law, and understand the need to ensure that competing issues need to be balanced in any investigation, whether they are the rights of the complainant, the interests of the employer, or the interests of those accused.


When an employee makes an informal or formal complaint, an employer should take immediate steps to stop the alleged conflict, protect the involved parties and begin investigations. Employers are legally obligated to investigate complaints harassment, discrimination, retaliation, safety and ethical in a timely manner. Given that every complaint has the potential to become a lawsuit, employers should investigate every case in a way it can be presented to a court of law, if necessary. Before embarking on an internal investigation, we recommend that an employer consider the following five top tips. An investigation must be planned to be effective and properly executed.

Our Internal Investigations team helps employers respond to internal incidents and employee complaints, reporting in a prompt, objective way that reduces our client's risk of liability. Our approach to internal investigations is tailored to the long-term needs of our clients, as well as more immediate circumstances.

Our lawyers are regularly asked by boards of directors, audit committees, corporate compliance departments, and public entities to conduct internal investigations arising from employment or whistleblower complaints. We have special expertise in investigating claims of fraud, harassment, discrimination, and retaliation, embezzlement, food safety violations, safety issues, securities violations, and many other types of alleged misconduct. We frequently work with companies in presenting investigative findings to corporate or government authorities and fashioning remedies and compliance efforts. Also, where appropriate, our lawyers work with law enforcement to respond to investigative findings. Internal Investigations Our lawyers are regularly asked by boards of directors, audit committees, corporate compliance departments, and public entities to conduct internal investigations arising from employment or whistleblower complaints. Recent investigations of this nature have included: Ethics investigations for various municipalities involving whistleblower and employment-related complaints.

Wednesday, January 12, in 7 days. This CLE course will prepare employment attorneys to counsel clients on legal and practical approaches to planning, conducting, and documenting internal investigations of employee complaints and suspected employee misconduct. The panel will guide how to properly and effectively conduct workplace investigations that minimize liability exposure and litigation risks. More and more employers are conducting internal investigations of suspected employee misconduct as employee retaliation claims soar and the EEOC continues its focus on systemic discrimination.


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  1. Mooguhn

    The correct answer

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