Full Bench of FWC rules on whether an investigation report needs to be released to the respondent.

The Fair Work Commission’s recent decision is a must-study case for HR leaders managing workplace investigations, particularly those involving allegations of misconduct that could lead to dismissal. This case underscores the delicate balance an organisation must strike between confidentiality and procedural fairness.

The Case: Allegations of Serious Misconduct

An employee at (the organisation) was alleged to have committed a number of breaches of company policy and was the subject of a misconduct investigation which was conducted by an external investigator.

The organisation decided to terminate the employee’s contract following receipt of an investigation report which concluded that the employee’s actions were incompatible with the ?organisation’s standards and expectations.

The employee argued that the process was flawed because he was not provided with the complete investigation report before his dismissal. He claimed that this lack of full disclosure violated his right to procedural fairness, as it prevented him from fully understanding the allegations and the evidence against him, thereby limiting his ability to respond.

The Disclosure Debate: Full Report or Key Findings?

The central issue in this case was whether the organisation was obligated to provide the employee with the entire investigation report to satisfy the requirements of procedural fairness.

The Employee’s Argument:

• Necessity of Full Disclosure: the employee asserted that to defend himself properly, he needed to see the full investigation report. He argued that without access to the entire document, he was unable to identify potential flaws in the investigation process or inaccuracies in the evidence presented.
• Understanding the Evidence: ?The employee’s position was that the full report was necessary for him to fully grasp the reasoning behind the findings and to challenge the evidence that led to his dismissal. He believed that without this information, his right to a fair hearing was compromised.

The the organisation's Argument:

• Sufficient Disclosure: The organisation contended that they had provided the Employee with all the essential information he needed to understand the allegations against him. They argued that disclosing the key findings and relevant evidence was sufficient for procedural fairness, and that the full report was not necessary for the Employee to mount an effective defence.
• Protecting Confidentiality: The organisation also highlighted the importance of maintaining the confidentiality of certain information within the report, particularly sensitive witness statements. They argued that full disclosure could jeopardise the privacy and safety of other employees, which could lead to reluctance among staff to participate in future investigations.

FWC’s Ruling: Clarity on Procedural Fairness

The FWC ruled in favour of the organisation, establishing that procedural fairness does not necessarily require the release of the full investigation report to the employee. However, the Commission clarified that employers must still provide enough information to allow the employee to respond meaningfully to the allegations.

For HR leaders, this ruling provides crucial guidance on how to manage the disclosure process during workplace investigations:

• Key Findings Must Be Disclosed: The FWC emphasised that the critical findings directly related to the allegations should be shared with the employee. This includes specific conduct investigated and the investigator’s conclusions about that conduct. By sharing these key findings, the employee is informed of the case against them without the need for full disclosure.
• Relevance Over Volume: The FWC also made it clear that only the evidence directly supporting the findings must be disclosed. This could include witness statements or documents that are pertinent to the specific allegations. The goal is to provide the employee with a clear understanding of the evidence without overwhelming them with unnecessary details or compromising confidentiality.
• Clear Summary of Allegations: Employers must ensure that the allegations are clearly summarised and that the employee understands how their actions were found to breach the organisation policies. This summary should be detailed enough to give the employee a fair opportunity to defend themselves, but concise enough to avoid over-disclosure.

Implications for HR Decision-Makers

This case highlights the need for HR leaders to strike a careful balance between transparency and confidentiality in workplace investigations. To implement these principles effectively, consider the following:

• Tailor Disclosures to the Situation: Evaluate what information is truly necessary for the employee to respond fairly. While it’s important to be transparent, over-disclosing can risk breaching confidentiality or overwhelming the employee with information that isn’t critical to their defence.
• Document Every Step: Keep detailed records of the information disclosed, the reasons for disclosure or non-disclosure, and how the employee was given the opportunity to respond. These records can be crucial if the investigation process is later scrutinised.
• Seek Expert Guidance: Given the complexities surrounding workplace investigations, partnering with experienced workplace investigators can ensure that your processes are both thorough and compliant with FWC guidelines.

Take the Next Step

In the ever-evolving landscape of workplace investigations, staying informed and compliant is crucial for HR leaders. To ensure your investigation processes are procedurally fair consider consulting with professionals who specialise in this field.

Visit www.insightinvestigations.com.au to learn how we can support your organisation. At Insight Investigations & Mediation, we help HR teams navigate complex investigations with confidence, ensuring that every step of the process is fair, thorough, and defensible.