When is it appropriate to perform a workplace investigation? Poor workplace investigations could lead to significant risk and liability for your organisation. This upcoming webinar aims to help employers take reasonable action when conducting workplace investigations. Register for our upcoming webinar to learn: • How to conduct best practice investigation and minimise risk; • Mistakes to avoid; • When are external investigators appropriate? • Tips and tricks to improve the process; • Recent cases from the Fair Work Commission. Do you have any questions or concerns around this topic? call us on 1300 565 846 for a confidential conversation.

1. Workplace Investigations
Workplace Relations and Employment
Team of the Year
©2017 Australian Business Lawyers & Advisors. All Rights Reserved

2. Julian Arndt
Senior Associate
Luis Izzo
Director
Presenters
©2017 Australian Business Lawyers & Advisors. All Rights Reserved

3. Agenda
• Why conduct Investigations?
• A Basic Layout
• Setting up and Common Mistakes
• Common (and tough) questions
3©2017 Australian Business Lawyers & Advisors. All Rights Reserved

4. Why Conduct Investigations?
The Practical
4
Determine what happened
Make a decision
Resolve the issue
©2017 Australian Business Lawyers & Advisors. All Rights Reserved

5. Why conduct investigations?
The legal
5
• Disciplinary action maybe challenged
• Costly litigation after the event:
 unfair dismissal
 adverse action
 bullying claim
 workers’ compensation claim
 discrimination claim
©2017 Australian Business Lawyers & Advisors. All Rights Reserved

6. The Key Questions
● Who is the investigator?
● What are we investigating?
● What is our exposure?
6©2017 Australian Business Lawyers & Advisors. All Rights Reserved

7. Who is your Investigator?
7
Capability is key.
©2017 Australian Business Lawyers & Advisors. All Rights Reserved

8. Knowing when to outsource
● Nature of allegations - complexity or requires
expertise
● Perceived lack of impartiality / bias
● Proceedings anticipated (legal professional
privilege)
8©2017 Australian Business Lawyers & Advisors. All Rights Reserved

9. What are we investigating?
● A Question of scope
● Keeping on track
9©2017 Australian Business Lawyers & Advisors. All Rights Reserved

10. What is our Exposure?
● Seriousness of Allegations
● Individual
● Cultural
1 0©2017 Australian Business Lawyers & Advisors. All Rights Reserved

11. Common Mistakes
● Not putting all allegations to respondent
● Ignoring evidence
● Ignoring new allegations
● Ignoring a policy/EA process
● Letting too much time lapse
● Lack of a Paper Trail
Singh v Aerocare Flight Support [2016] FWC 6186
1 1©2017 Australian Business Lawyers & Advisors. All Rights Reserved

12. Examples:
Investigations gone wrong
Getting the facts wrong
Shakir v Department of Family and Community Services [2017]
NSWIRComm 1040
I observe here that persons having the delegation to, inter alia, dismiss
employees for misconduct cannot simply proceed on the basis of an
investigator’s finding without more. Dismissing an employee is a serious
matter and a person holding the delegation to do so must, in my view,
form an independent view that misconduct has occurred before
considering disciplining an employee for misconduct.
1 2©2017 Australian Business Lawyers & Advisors. All Rights Reserved

13. Examples:
Investigations Gone Wrong…
Failing to follow the Policy
Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177
“It was also appropriate, indeed, promised under the contract that if a
complaint were made under the Policy, it would be pursued in accordance
with a certain standard.”
1 3©2017 Australian Business Lawyers & Advisors. All Rights Reserved

14. The Common Questions
1 4©2017 Australian Business Lawyers & Advisors. All Rights Reserved

15. ● “He told me ‘off-the-record’”
1 5©2017 Australian Business Lawyers & Advisors. All Rights Reserved

16. ● “Do we suspend? On pay?”
1 6©2017 Australian Business Lawyers & Advisors. All Rights Reserved

17. ● “She wants to see the complaint and the
statements against her”
1 7©2017 Australian Business Lawyers & Advisors. All Rights Reserved

18. ● “They won’t talk”
1 8©2017 Australian Business Lawyers & Advisors. All Rights Reserved

19. ● “It is his word against hers”
1 9©2017 Australian Business Lawyers & Advisors. All Rights Reserved

20. ● “He is bringing in his Barrister”
2 0©2017 Australian Business Lawyers & Advisors. All Rights Reserved

21. ● “He wants to see the Report”
2 1©2017 Australian Business Lawyers & Advisors. All Rights Reserved

22. ● “We have found some problems. What do we
need to tell the complainant? Do we need to
act?”
2 2©2017 Australian Business Lawyers & Advisors. All Rights Reserved

23. 2 3©2016 Australian Business Lawyers & Advisors. All Rights Reserved
Process
Situation + Context
Establish
the Facts
Put facts
and position
to employee
Allow
employee
an
opportunity
to respond
Consider
response
and explain
company
view about
it
Explain
what action
you are
taking
Implement
action
Employee not
required for work
but remaining on
pay
Having a person with
them

24. 2 4©2016 Australian Business Lawyers & Advisors. All Rights Reserved

25. 30 minute complimentary consultation on your Workplace
Investigations issue.
Call 1300 565 846 to book in a time.
Offer ends 31 August 2017
2 5©2016 Australian Business Lawyers & Advisors. All Rights Reserved
Special offer

26. Date: 31 August 2017
Location: North Sydney – Sydney NSW
The half-day course will focus on:
• Fundamental rules on workplace investigations
• Understanding the process - when, how, who?
• Common mistakes you need to avoid
• Gathering and analysing evidence - best practice tips
• Third parties - when you need them
Places are strictly limited- sign up today!
1300 565 846
info@ablawyers.com.au
2 6©2016 Australian Business Lawyers & Advisors. All Rights Reserved
Workplace Investigations Training

27. Contact us
2 7©2016 Australian Business Lawyers & Advisors. All Rights Reserved
NEWCASTLE
Suite 402, Level 4
Watt St Commercial Centre
Newcastle NSW 2300
Phone : 02 9458 7005
www.ablawyers.com.au
BRISBANE
10 Felix St
Brisbane QLD 4000
Phone : 02 9458 7005
www.ablawyers.com.au
Luis Izzo
Director
Luis.izzo@ablawyers.com.au
Julian Arndt,
Senior Associate
Julian.arndt@ablawyers.com.au
SYDNEY
10/140 Arthur St,
North Sydney
NSW 2060
Phone : 02 9458 7005
www.ablawyers.com.au