20 August 2014 WORKPLACE INVESTIGATIONS twitter.com/WeFightForFair facebook.com/MauriceBlackburnLawyers Taking the piss? Drug & Alcohol Testing in the Workplace
Nov 28, 2014
20 August 2014
WORKPLACE INVESTIGATIONS
twitter.com/WeFightForFair
facebook.com/MauriceBlackburnLawyers
Taking the piss? Drug & Alcohol Testing in the Workplace
"Maurice Blackburn acknowledges the traditional owners of the land on which we gather, and we pay our respects
to elders past and present."
Workplace Investigations
Founded in 1919.
Maurice Blackburn – distinguished lawyer and Labor member of Parliament.
Dedicated to worker’s rights.
Defence of underprivileged groups.
Determined to make a genuine difference for people who need help
Fight hard for best possible outcome
Australia’s leading social justice law firm
12 permanent offices across Queensland
Our history
Workplace Investigations
Our services
Employment & Industrial Law
Work Related Injuries
Road Accident Injuries
Medical Negligence
Asbestos Diseases
Superannuation & Disability Insurance
Public Liability
Faulty Products
Comcare
Workplace Investigations
Our officesPermanent offices:
Visiting offices: Gladstone Mt Isa
Brisbane 3016 0300
Browns Plains 3809 7400
Caboolture 5316 0900
Cairns 4051 3233
Gold Coast 5561 1300
Ipswich 3280 7100
Mackay 4960 7400
Rockhampton 4999 3800
Strathpine 3490 4700
Sunshine Coast 5430 8700
Townsville 4772 9600
Toowoomba 4646 1000
Workplace Investigations
Agenda
Welcome
Part 1: The Investigation
Morning Tea
Part 2: Disputing Process and Findings
Guest Speaker: Trent Johnson
Questions
Workplace Investigations
Agenda
Part I
The landscape
Problems with workplace investigations
Cases considering the process of workplace investigations
The role of unions in workplace investigations
Whether the respondent has rights to natural justice and procedural fairness
Participation as a reasonable and lawful direction
Refusal to answer questions
Involvement of external lawyers and claims of privilege
Workplace Investigations
The landscape
Investigations usually take place in relation to allegations of misconduct such as:
bullying or harassment
safety breaches
other disciplinary matters
This presentation is focussed on the representation of some subject to allegations
Usually 3 methods of investigating :
1. Investigation by employer (usually HR)
2. Investigation by third party retained by employer (workplace investigators /
lawyers), and
3. Investigation by OHS authority (e.g. Workplace Health and Safety Queensland)
Workplace Investigations
Problems with investigations
Investigations by employers present a number of risks:
Prejudgement of the issues because the investigators are too close to the people and
issues in question
Lack of expertise to conduct investigations
Inadequate separation between the investigator and the decision-maker, which may
limit the investigator’s independence
Having a preconceived outcome – designed to target someone or avoid legal liability
Bias in an investigation or decision maker
In Nikolich v Goldman Sachs, the Federal Court awarded the applicant over $500,000 for a
major depressive illness that the Court attributed primarily to botched handling of an
investigation of the applicant’s complaint, rather than the original grievance.
Workplace Investigations
Problems with investigations
Investigations by third parties retained by employers:
Can bring more independence if the investigators are diligent and skilled
However, the industry itself has a number of systemic problems:
It is largely unregulated so anybody can set up as a workplace investigator
irrespective of skills and training – no accreditation is required
There is a strong financial incentive for the investigators to produce reports
that satisfy the employer for repeat business
Where lawyers conduct the investigation and reports or findings may be
withheld with a purported claim of legal professional privilege or re-written to
legally protect the employer
The employer often retains control and engineers its desired outcome
Workplace Investigations
Problems with Investigations
The employer and investigator agree on terms of reference with no input
from the employee
Frequent communications between the employer and the investigator
without the employee’s knowledge
Provision of draft reports to the employer for review or editing prior to its
issuing to the employee
Full investigation reports being withheld from the employee – given minimal
information relying on confidentiality
Workplace Investigations
Cases where form of investigations considered
AMWU v Visy Packaging Pty Ltd (No 3) [2013] FCA 525
Discussed need for workplace investigation
Found the investigation and disciplinary action taken against the employee was
adverse action
Found the investigation was not independent and impartial because:
The employer framed the questions to be asked
Attended the interview with the employee
Intervened in the investigation, revising the investigator’s findings
The employer’s lawyers communicated with the investigator during the
investigation with questions for clarification ‘in case this leads to you
updating or reviewing the report’.
Workplace Investigations
Cases where form of investigations considered
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.
Workplace Investigations
Cases where form of investigations considered
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.’
Workplace Investigations
Thomas and Goddard v St Vincent de Paul Aged Care and Community Services [2006] AIRC 46.
Hingley C held:
“I do not accept on the evidence that the consultant’s report was “poorly prepared and considered”. I
can understand the perception, that “the panel” comprised of the consultant and the HR Manager,
may have biased the consultant towards the respondent, but I doubt that in fact this was the case.
Although for the sake of perception it would have been better had the consultant acted entirely alone
and this in my view was a flaw in the process, it did not on balance deprive it of basic objectivity or
fairness.”
The dismissals were found to be for a valid reason and the presence of HR in the independent
investigation was not sufficient to undermine the basic objectivity or fairness. Even where the
employer had a policy requiring natural justice be afforded.
Workplace Investigations
Cases where form of investigations considered
Mrs Nelli Berberian v Tiny Scholars [2013] FWC 5376
Cambridge C found:
Any investigation or inquiry undertaken by an employer is an important aspect of any
consideration as to whether any belief was subsequently formed on reasonable grounds
Only in unusual circumstances will an employer be able to form a reasonable belief about
misconduct without testing the subject matter directly with the accused employee
In this case, to determine if the respondent held a reasonable belief that the misconduct
occurred factors for and against have to be weighed up.
‘ A careful evaluation … leads me to conclude that although it involved unfortunate errors and
deficiencies it nonetheless represented an inquiry which … provided reasonable grounds upon which
the belief of the employer was established.’
Workplace Investigations
Cases where form of investigations considered
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.
Workplace Investigations
Cases where form of investigations considered
The role of unions in investigations
Initially a strategic decision to determine whether, based on the situation, you:
a) do your best to influence the process to your member’s advantage; or
b) let the employer ‘hang’ themselves on improper process to be used in some form of
dispute or action.
If it is the former, then it is about getting into the process and asserting any right to
represent, ensuring processes in awards, agreements, policies and contracts are followed
The object of the Fair Work Act is to ‘provide a balanced framework for co-operative and
productive workplace relations … ‘ by, amongst other things, ‘enabling fairness and
representation at work …’
The only other provision which suggests access to representation for employees is the
unfair dismissal consideration to have a ‘support person.’
Workplace Investigations
The role of unions in investigations
The object of the Act referring to representation, however, does not create positive
rights for members to be represented by unions.
As you are aware, this leaves the creation of rights to representation by delegates
and union officials primarily to enterprise bargaining.
Company policies may provide for a role of representatives, but will rarely make it
easy for unions.
Use process defined in agreements and policies to your member’s advantage by
demanding adherence where it assists them and inserting yourself into the process
where you can.
Workplace Investigations
Rights to natural justice and procedural fairness in investigations Policies and attitudes developed by employers over time to afford employees procedural
fairness in investigations and disciplinary processes, including providing them with an
opportunity to respond to allegations, have largely been in response to successful unfair
dismissal claims.
A right to natural justice or procedural fairness in a workplace investigation may be
addressed in a contract or industrial instrument prescribing that it be afforded. It can then
be enforced as a term of the contract or instrument.
As a matter of common law, it is not entirely settled if an employer has a duty of fair and
reasonable treatment. If a duty does exist if it would likely extend to investigations dealing
with disciplinary matters.
Workplace Investigations
Rights to natural justice and procedural fairness in investigations
Policies and attitudes developed by employers over time to afford employees
procedural fairness in investigations and disciplinary processes, including providing
them with an opportunity to respond to allegations, have largely been in response to
successful unfair dismissal claims.
A right to natural justice or procedural fairness in a workplace investigation may be
addressed in a contract or industrial instrument prescribing that it be afforded. It can
then be enforced as a term of the contract or instrument.
As a matter of common law, it is not entirely settled if an employer has a duty of fair
and reasonable treatment. If a duty does exist if it would likely extend to
investigations dealing with disciplinary matters.
Workplace Investigations
Rights to natural justice and procedural fairness in investigations An inquiry about misconduct may not be a breach of this implied term, but it is
arguable that an investigation conducted, with a predetermined outcome, in a way
that humiliates the employee, significantly damages their reputation, is undertaken
following an allegation of serious misconduct made without any reasonable basis, is
significantly flawed or conducted maliciously – may be a breach of the implied term.
Quinn v Grey (2009) 184 IR 279
Commonwealth Bank of Australia v Barker [2013] FCAFC 83
Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney
(2008) 72 NSWLR 559
Workplace Investigations
Rights to natural justice and procedural fairness in investigations
In summary, there is not a clear implied right to procedural fairness in
investigations. An express right may exist in a contract or industrial
instrument.
Workplace Investigations
Participation as a reasonable and lawful direction
A direction to participate in an investigation whether it is to attend and answer
questions in an interview, provide a written response or relevant documents is likely
to be a reasonable and lawful direction to the employee.
There is an implied term in an employment contract that an employee has an
obligation to obey directions about the performance of the work they are contracted to
perform that are lawful, reasonable, consistent with the contract and within the scope
of employment. 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.
Workplace Investigations
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.
Workplace Investigations
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.’
Workplace Investigations
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.’
Workplace Investigations
Refusal to answer questions
Appeal by Telstra Corporation Ltd (2008) AIRCFB 15 – Streeter case
At first instance SDP Hamberger determined that her conduct was not serious enough to
warrant dismissal and dishonesty was not a valid reason because it was about personal
activities.
The majority in the Full Bench rejected that finding and held:
‘We are satisfied there was a valid reason for the termination of Ms Streeter’s employment by
Telstra related to her conduct, being her dishonesty with Telstra during the investigation it
conducted’ … Ms Streeter’s dishonesty during the investigation meant Telstra could not be
confident Ms Streeter would be honest with it in the future. The relationship of trust and
confidence between Telstra and Ms Streeter was, thereby, destroyed.’
‘Whether the matters were personal or not, [the employee] had an obligation to answer
Telstra’s reasonable inquiries honestly.’
Workplace Investigations
External lawyers and claims of privilege over outcomes
Difficulties are created for members when employers engage lawyers to undertake
investigations and then claim the report of outcomes cannot be released because the
contents are covered by legal professional privilege.
If there is any opportunity, concerns about engaging lawyers as investigators can be
raised with the employer and an attempt made to agree on the release of findings.
If you are bargaining about clauses dealing with investigations, attempt to specifically
exclude the employer’s lawyers as investigators and/or include a step to agree an
investigator.
Otherwise you are left arguing about the flawed process after the findings are
withheld.
Workplace Investigations
External lawyers and claims of privilege over outcomes
Bartollo v Doutta Galla Aged Care Services [2014] FCCA 1517
Judge Whelan agreed that the Board engaged the law firm to obtain legal advice, it
also engaged it to conduct out an investigation of the employee's actions that didn't
necessarily have to be carried out by a legal practitioner.
However, she found that when the client has put in issue its state of mind and it
appears that legal advice was given at the relevant time, the privilege was lost where
it was shown that there is a likelihood that the legal advice contributed to that state of
mind
She held that it would be unfair to deny the employee access to the "factual basis on
which the Board formed the reasons which gave rise to the recommendation" that he
be dismissed.
Workplace Investigations
Workplace Investigations
Emma Thornton
Direct line: 07 3016 0337
Email: [email protected]
Questions?
33
PART II: DISPUTING PROCESS AND FINDINGS
Giri SivaramanPrincipal Employment & Industrial Law Section
Agenda
Part II
Practical considerations
Disputing the process and findings of an investigation
Using other options to address adverse investigations
industrial disputes
bullying complaints
discrimination / victimisation complaints
public interest disclosure legislation
general protections complaints
Agreement clauses and policies about investigations: what to include
Workplace Investigations
1. Make a Strategic Decision
No two cases are the same
Proactive v Reactive
Shaping and challenging process
Unfair Dismissal – last resort?
If it is the former, then it is about getting into the process and asserting any
right to represent, ensuring processes in awards, agreements, policies and
contracts are followed.
Even if employer say no to your requests, and you take legal action, you will
have a much stronger claim to argue if you have challenged the process
along the way.
Workplace Investigations
2. Threshold Considerations Threshold question of whether there should be a formal investigation
Informal resolution through management action / mediation?
Impact on health of respondent
How serious are the allegations?
Has there been a suspension?
Lawful?
What does Agreement say? Some say only where allegations of serious
misconduct.
Review Agreement and Policies;
Is there a right to natural justice or procedural fairness;
Does the Agreement set out very clear steps that an employer is required to
follow and do they appear to be following it;
Workplace Investigations
3. Preliminary Steps
Ask for allegations in writing and clarification regarding process and applicable policy;
Doesn’t mean you have right to original complaint;
Have all relevant documents been provided. If not, request.
Form assessment as to whether allegations clear and specific enough to respond to
or whether further details, known as “particulars” are required. If so, request.
Is it a situation where particulars deficient but strategic decision not to request further
particulars.
Who is the investigator?
Who is the decision maker?
Are they the same person?
Are there any bias issues with either?
Workplace Investigations
3. Preliminary Steps
Request from employer, particularly when external investigator:
Copy of Terms of Reference or letter of engagement;
Undertakings from employer
Full transparency in all communications and correspondence to and
from the employer, employer’s representatives and the investigator;
Support person permitted to attend interview;
Provision of draft report at same time provided to employer and
reasonable opportunity to respond;
Opportunity to comment on proposed disciplinary action, prior to any
final decision being made.
Workplace Investigations
4. Written v Verbal Response
Depends on options provided by employer
– obliged to comply with lawful direction to attend interview
Number of allegations
Seriousness of allegations
Health of respondent – fit to attend?
Preparation required in either
Workplace Investigations
Face to Face Interview:
Advantages:
face to face;
Real person rather than words on page;
Conveying image of nothing to hide;
Quicker and more efficient
Disadvantages:
Open ended or irrelevant questions;
Employee may put their foot in it by telling more than required
Limited opportunity for union rep to answer or clarify for employee;
Value of written statement even in interview
4. Written v Verbal Response
Workplace Investigations
Written Response
Advantages:
Time to consider allegations;
Ensure you only answer the specific allegations;
Can contextualise if need be;
Union can flavour response;
Can put in brief “I deny the allegations”;
Disadvantages:
Time and resources;
How much detail required to respond;
If employer has requested face to face but you produce a written response it
may cause employer to doubt how truthful the employee is being.
4. Written v Verbal Response
Workplace Investigations
5. Denials and Context
Obligation to tell truth
Various ways to frame answer:
Deny the allegation;
Deny the allegation, but acknowledge, for example, that a conversation about a
topic occurred but not in the way alleged ie contextualise;
Admit that you said or did something but not in the way alleged – contextualise;
Admit that you did what is alleged but intention wasn’t to offend or be malicious
and apologise
Hindsight
Concessions – shows reasonableness.
Admit and explain any mitigating circumstances (depending on the seriousness
of the allegations)
Workplace Investigations
6. Submissions by Unions
Limitations – support person v advocate;
Raise procedural problems – judgement call;
What other evidence does the employer intend to rely upon?
Has that evidence been put to the employee?
Credibility of allegations or original complaint – careful juggling act
Are the facts made out on the balance of probabilities;
Even if proven, would it be a valid reason justifying termination or is it minor that
warrants a warning etc.?
What does the policy / agreement say – e.g. is counselling more appropriate?
Request copy of statement to review and approve;
Agreement on timeframe and provision on report.
Workplace Investigations
7. Preliminary Report
Request employer/investigator to provide preliminary report at the time
provided to employer / decision maker and give employee reasonable
opportunity to respond / comment (e.g. 7 days);
Enables employee to have a second go, particularly where they have only
provided a brief response;
Can wait to raise procedural issues or other legal avenues at this point:
E.g. some employers start on a complaint process but jump to a
misconduct outcome
Other legal challenges if termination looks likely
Workplace Investigations
Internal appeals
Industrial disputes
Anti-bullying applications
General protections disputes
Discrimination/victimisation complaints
Public interest disclosure legislation
Disputing process and findings
Workplace Investigations
Some larger workplaces, particular public sector entities, have internal
mechanisms for appealing an investigation finding.
It is important to follow the steps outlined in the policy document when
appealing the policy.
It is also recommended that, unless urgent action is required (i.e. there is an
impending dismissal), internal appeal processes be exhausted prior to
escalating the matter external to the workplace.
Internal appeals
Workplace Investigations
Jurisdiction depends on sector of employer.
QIRC for public sector employers and most GOCs.
FWC for private sector, some local councils and some GOCs.
The High Court has found that management decisions (including with respect to an
investigation) can be the subject of an industrial dispute:
“... we reject the suggestion, based on the remarks of Barwick C.J. in Melbourne & Metropolitan
Tramways Board, that managerial decisions stand wholly outside the area of industrial disputes
and industrial matters. There is no basis for making such an implication. It is an implication
which is so imprecise as to be incapable of yielding any satisfactory criterion of jurisdiction...
Indeed, the difficulty of making such an implication is accentuated by the fact that the extended
definition of ‘industrial matters’ proceeds on the footing that many management decisions are
capable of generating an industrial dispute…
Industrial disputes
Workplace Investigations
These considerations indicate that the objection voiced by O’Connor J. in Clancy to the
regulation and control of business enterprises by industrial tribunals is not a matter that
goes to the jurisdiction of the tribunals. Rather it is an argument why an industrial tribunal
should exercise caution before it makes an award in settlement of a dispute where
that award amounts to a substantial interference with the autonomy of management
to decide how the business enterprise shall be efficiently conducted.”
- Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd [ 1987] HCA 28; (1987) 163
CLR 117 (16 July 1987).
Industrial disputes
Workplace Investigations
For public sector, and most GOC, employees, disputes about the processes and/or finding
of workplace investigations can be raised directly through the QIRC.
File an industrial dispute under section 229 of the Industrial Relations Act 1999 (Qld).
Requirement that dispute be about “industrial matters”. “Industrial matters” has a very
broad definition, under section 7, and includes matter affecting:
(a) work done or to be done; or
(b) the privileges, rights or functions of—
(i) employers or employees; or
(ii) persons who have been, or propose to be, or who may become,
employers or employees; or
(c) a matter (whether or not an industrial matter as defined in this section) that the
court or commission considers has been, is, or ma be a cause or contributory
cause of an industrial action or industrial dispute.
Industrial disputes - QIRC
Workplace Investigations
(2) However, a matter is not an industrial matter if it is the subject of proceedings for an
indictable offence.
(3) Without limiting subsection (1) or affecting subsection (2), a matter is an industrial
matter if it relates to a matter mentioned in schedule 1.
Schedule 1 has a very long list of matters that are considered industrial matters.
In short, a complaint about an investigation being undertaken at work is very likely to be
considered an “industrial matter” for the purpose of the Act.
There is no pre-filing process required, however, the Commission is likely to be more
helpful if the employee has attempted to dispute the process and/or findings internally
first.
The first step is a conciliation with a Commissioner, which is recorded and transcript
provided to the parties.
Industrial disputes - QIRC
Workplace Investigations
This is an excellent opportunity to seek a recommendation and/or order
from the Commission about how the employee’s concerns ought to be
addressed.
For example, the employee can seek a requirement that the employer meet
deadlines, produce documents and allow a formal response process for the
employee.
The Commission is usually open to providing formal orders with respect to
agreed procedural steps.
If the matter cannot be resolved, it can progress to arbitration.
Industrial disputes - QIRC
Workplace Investigations
In order to escalate a dispute to the Fair Work Commission for matters involving an
investigation process and/or findings, you need to ensure:
The Instrument covering the employee has a broad dispute resolution clause
(including all employment-related matters); and
The union or employee has complied with the required procedural steps as outlined
in the dispute resolution procedure.
Conciliation is the first step for dispute resolution.
Opportunity to meet with employer in formal setting to agree to procedural steps, such as
deadlines, production of documents, inclusion of employee’s witnesses, formal response
opportunities.
Can seek a recommendation from the Commission about the process and/or findings.
If the matter cannot be resolved at conciliation, can refer to arbitration (provided Agreement
allows for it).
Industrial disputes - FWC
Workplace Investigations
Part 6-4B of the Fair Work Act 2009 (Cth):
Requirements to successfully obtain anti-bullying order:
1. The person making the application must be a “worker”…
2. Who “reasonably believes”…
3. That he or she has been “bullied”...
4. “At work”
5. In a “constitutionally-covered business”
6. AND there must be a “risk that the worker will continue to be bullied
at work by the individual or group”
Anti-bullying applications
Workplace Investigations
The definition of “bullied” excludes “reasonable management action carried out in a
reasonable manner”
The EM provides examples of “reasonable management” action:
Reasonable for employers to allocate work
Reasonable for managers and supervisors to give fair and constructive feedback
on a worker’s performance
Similar to workers’ compensation legislative definition.
Difficult to prove that a flawed investigation process and/or findings aren’t “reasonable
management action”.
Conciliation still provides a formal forum to discuss the issues, with the input of an
objective third party, and agree to processes.
Anti-bullying applications
Workplace Investigations
Part 3-1 of the Fair Work Act 2009 (Cth):
Section 342 defines “adverse action” for the purpose of the FW Act.
With respect to employees, adverse action occurs where an employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the
employer.
“alters the position of the employee to the employee’s prejudice” has been interpreted
very broadly, and includes circumstances in which the employee’s legal rights are not
directly affected: Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of
Australia [1998] HCA 30; (1998) 195 CLR 1.
General protections disputes
Workplace Investigations
Commencing an investigation into an employee’s conduct has been determined as capable
of being adverse action for the purpose of the FW Act:
Jones v Queensland Tertiary Admissions Centre Ltd (No. 2) [2010] FCA 399;
(2010) 186 FCR 22 at [80]- [82] per Collier J;
Automotive, Food, Metals, Engineering, Printing And Kindred Industries Union v
Visy Packaging Pty Ltd [2011] FCA 1001 per Dodds-Streeton J;
Automotive, Food, Metals, Engineering Printing and Kindred Industries Union v
Visy Packaging Pty Ltd (No 3) [2013] FCA 525 (Visy (No 3)) at [103]-[105] per
Murphy J.
Requiring an employee to participate in an investigation has also been determined as
capable of being an alteration to an employee’s position to his/her prejudice:
Kimpton v Minister for Education of Victoria (1996) 65 IR 317 at 319 per North J.
General protections disputes
Workplace Investigations
Adverse action must be for a prohibited reason:
Section 340 and 341 – exercising or proposing to exercise a workplace
right;
Section 346 and 347 – engaging in industrial activity;
Section 351 - discriminatory reasons (must be an employee);
Section 352 – temporary absence due to illness or injury (restricted to
employer dismissing an employee);
Section 358 – to engage as a contractor (must be an employee and must
involve a dismissal).
General protections disputes
Workplace Investigations
Where non-dismissal related, can file directly in Federal Court or Federal Circuit Court –
must do so within 6 years.
Can seek an injunction to stop the investigation: Automotive, Food, Metals, Engineering,
Printing And Kindred Industries Union v Visy Packaging Pty Ltd [2011] FCA 1001;
National Tertiary Industry Union & Anor v University Of Technology Sydney [2014] FCCA
1243 (unsuccessful applications).
Can apply to the Commission first, but respondent not obligated to attend conciliation.
Potential outcomes:
compensation for economic loss (i.e. if employee stood down without pay);
general damages;
penalties;
injunction.
General protections disputes
Workplace Investigations
State (ADCQ) and federal (AHRC) discrimination jurisdictions.
Similar processes, though if matter proceeds to trial:
State jurisdiction complaints go to QCAT (primarily a no cost jurisdiction);
Federal jurisdiction complaints go to federal Court or Federal circuit Court
(costs jurisdictions).
Can seek interim injunctions in both (McIntyre v Hastings Deering (Australia) Ltd and
Anor [2012] QCAT 438).
Preferable jurisdiction will depend largely on facts and priorities.
Victimisation is an offence (in both jurisdictions) and occurs where a person causes, or
threatens to cause, another person to suffer a detriment for raising genuine
discrimination complaints.
Useful if employer uses investigation to turn on discrimination complainant.
Discrimination / victimisation
Workplace Investigations
Public Interest Disclosure Act 2010 (Qld).
Covers employees of State of Queensland, most GOCs, State Authorities, local governments.
“Public interest disclosure” by a public officer includes information about—
(a) the conduct of another person that could, if proved, be—
(i) official misconduct; or
(ii) maladministration that adversely affects a person’s interests
in a substantial and specific way; or
(b) a substantial misuse of public resources (other than an alleged misuse based
on mere disagreement over policy that may properly be adopted about amounts,
purposes or priorities of expenditure); or
(c) a substantial and specific danger to public health or safety; or
(d) a substantial and specific danger to the environment.
Public interest disclosures
Workplace Investigations
(2) The person may make a disclosure under section 17 in relation to the information to a
proper authority.
(3) For subsection (1), a person has information about the conduct of another person or
another matter if—
(a) the person honestly believes on reasonable grounds that the
information tends to show the conduct or other matter; or
(b) the information tends to show the conduct or other matter, regardless of
whether the person honestly believes the information tends to show the conduct
or other matter.
If the entity has reasonable procedures for making a public interest disclosure (which
must departments and local governments have), the employee must use the
procedure: section 17.
Public interest disclosures
Workplace Investigations
Usually where a State of Queensland employee makes a complaint of serious harassment,
he/she will receive a letter advising that the matter has been referred to the ESU or CMC
and that it is being treated as a public interest disclosure.
Relevantly, the Public Interest Disclosure Act provides that it is unlawful to cause detriment
to, or conspire to cause detriment to a person who has made a public interest disclosure:
sections 40 and 41 (referred to as a “reprisal”).
The maximum penalty is 167 penalty units or 2 years imprisonment.
In most circumstances, the public sector entity is vicariously liable for reprisals taken by its
employees: 43.
Can be addressed as a tort through the District or Supreme Court or, the ADCQ has
jurisdiction to deal with a complaint of reprisal as if it were a discrimination complaint:
section 44.
Public interest disclosures
Workplace Investigations
It is ideal to have dispute resolution clauses that are broad enough to include
disputes about all matters relating to the employment relationship.
Some Agreements have provisions about disciplinary action. You may want to
include in those provisions, or have entirely an entirely separate provision, for
matters involving investigations.
You may want to use the Agreement to ensure members are entitled to
procedural fairness and an efficient process.
Enterprise bargaining agreements
Workplace Investigations
1. Truly independent investigation;
2. Transparency in process;
3. No secret communication;
4. Input as to the external investigator;
5. Obligation to provide Terms of Reference or letter of engagement;
6. Requirement for procedural fairness;
7. Union representation in interviews;
8. Copy of preliminary report;
9. Opportunity to comment on preliminary report;
10. Timelines; and
11. Appeal process.
Agreements wishlist
Workplace Investigations
Workplace Investigations
Giri Sivaraman
Direct line: 07 3016 0345
Email: [email protected]
Questions?
66
ASBESTOS, DUST DISEASES AND SKIN CANCER CLAIMS
Trent JohnsonSenior AssociateAsbestos, Dust Diseases & Skin Cancer Claims
6 months from date of injury / diagnosis to lodge workers’ compensation claim in
Queensland
Onus on worker to prove on balance of probabilities
Evidence required:
Statutory declaration of client confirming both occupational and non-
occupational exposure
Independent evidence of employment / exposure
Evidence of diagnosis / prognosis
Workers’ compensation medical certificate
Evidence that exposure falls within accepted latency periods
Evidence that exposure is a known / accepted causes of illness or disease
Evidence of any financial dependency (for dependency claims / lump sum)
Queensland workers’ compensation claims
Workplace Investigations
No provisional damages in Queensland – once and for all basis
In Queensland, timelines apply for filing court proceedings:
Dust-related conditions – within injured person’s lifetime
Non dust-related conditions – within 3 years of date of initial injury /
exposure or within 1 year of material fact of decisive character
Otherwise, the vast majority of entitlements / damages to injured
party and their estate are statute barred and extinguished upon death
Note: non-dust related latent injuries on and after 15 October 2013 may need
to comply with 6 month limitation date for requesting NOA
Common law (damages) claims
Workplace Investigations
Minimum 10 years post exposure
Minor exposures can cause terminal illness (mesothelioma)
Prolonged exposures can cause all illness – minor to severe
Must establish cause of exposure and duration / frequency of exposure,
particularly for asbestos related lung cancer
It’s helpful to establish the manufacturer of the asbestos product
Occupational and non-occupational exposure must be differentiated
Asbestos related illness claims
Workplace Investigations
Self-employed female, early 60’s, diagnoses with terminal mesothelioma
No direct work with or use of asbestos by client or her current husband
Investigations revealed client laundered work clothing of her ex-husband whilst married
several decades earlier
Ex-husband was employed by an air-conditioning manufacturer; duties included
construction of AC ducting and installation
Ex-husband suffering from asbestosis
Ex-husband handled and used asbestos mill-board to line the heather boxes of the AC
ducting, and installed AC ducting in various high-rises, including one in Brisbane CBD
known for lagged asbestos as a fire-retardant – also confirmed by ex-husband’s co-
workers
Claim settled pre-trial
Case study: Mrs M.
Workplace Investigations
Skin cancer claims
Workplace Investigations
Can be caused by sunlight or other forms of ultra-violet (UV) light (e.g. Mig /
Tig welding)
Need to prove duration and extent of occupational exposure
Need to differentiate between occupational and non-occupational (particularly
childhood and adolescent) UV exposure as a cause of the illness
Need evidence of PPE – i.e. work clothing, hats, sunscreen, gloves, etc.
Need direct and independent evidence of duties performed. E.g. truck /
delivery drivers
Need direct and independent evidence regarding occupational exposure
Case study: Mr. B
Workplace Investigations
Early 40’s male, contacted MB in late February 2014 when claim was rejected
Died late March 2014 from malignant melanoma of the lower leg with brain metastases
Employed as a truck / delivery driver in Queensland from 1990 – 2008
Self-employed truck / delivery driver in Queensland from 2008 – 2012; had own
workers’ compensation policy ($50k cover limit)
Workers’ compensation, personnel and union records confirmed work history (some
employers no longer exist)
Direct and independent evidence supported absence of suitable PPE in work
environments
Industry (and insurer) studies confirmed it was a high risk industry for skin cancer –
experts briefed with this and supported claim
Claim accepted for more than $740,000 with full entitlements
Evidence
Workplace Investigations
Prior workers’ compensation claims are important – including report only
exposures
Incident reports sometimes kept by client’s and / or personnel files
WHP&S investigations
Union records are vital
Co-workers – details sometimes from incident reports and workers’
compensation claims
Historical searches for records / articles regarding injuries, workplace
prosecutions, building modifications, etc.
As always, it is important that legal advice is obtained as soon as possible
after diagnosis / injury
Trent Johnson
Direct line: 07 5430 8743
Email: [email protected]
Questions?
Workplace Investigations
Personal InjuryThis information is prepared for the purposes of the seminar conducted on 20 August 2014 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.
Taking the piss? Drug & Alcohol Testing in the Workplace