EILS Seminar: Workplace Investigations

WORKPLACE
INVESTIGATIONS
Emma Thornton
Giri Sivaraman
Michelle James

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
Workplace Investigations - June 2016
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OUR OFFICES
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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*
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WORKPLACE
INVESTIGATIONS
EMMA THORNTON
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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
6

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
7

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
8

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
9

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
10

AGREEMENTS
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
11

AGREEMENTS
• Provision for investigations and disciplinary action in Agreements themselves
• Consider dispute resolution clauses
• Prosecute breaches in Court
12

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.
13

CTH PUBLIC SECTOR
LEGISLATION:
DISCIPLINARY ACTION AND
APPEALS
Public 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
14

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
15

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.
16

BURNETT V EASTERN
HEALTH CONT.
• 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
17

BURNETT V EASTERN
HEALTH CONT.
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 18

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
19

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.
20

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.
21

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”.
22

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.
23

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.’
24

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.
25

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.
26

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.
27

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.
28

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.
29

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.
30

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.
31

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.
32

TIPS & TRAPS
GIRI SIVARAMAN
35

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.
36

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.
37

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.
38

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.
39

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.
40

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.
41

REFUSAL TO ANSWER
QUESTIONS
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.’
42

REFUSAL TO ANSWER
QUESTIONS
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.’
43

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?
44

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
45

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
46

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
47

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.
48

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
49

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
50

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
51

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
52

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.”
53

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
54

SHOULD THERE BE AN
INVESTIGATION? CONT.
Some alternatives include:
• Mediation
• Counselling
• Performance management
• Training
Not conducting a workplace investigation is highly under-rated.
55

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 56

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
57

THE INVESTIGATOR
CONT.
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
58

THE INVESTIGATOR
CONT.
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
59

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’ 60

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
61

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
62

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
63

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.”
64

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
65

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
66

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
67

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
68

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.
69

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.
71

1800 810 812 (business hours)
mauriceblackburn.com.au

EILS Seminar: Workplace Investigations

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