Australia: Safely investigating employee issues

An employee who developed a psychological injury during the course of a workplace investigation claimed that it arose because of the way the investigation was conducted and claimed workers compensation on that basis. The employee's claim was successful after the Queensland Industrial Relations Commission (QIRC) found that the investigation was not conducted in a reasonable way.

What happened?

The employee was asked to participate in a workplace investigation that was being conducted by an external investigator. Before meeting the investigator, the employee was told that an investigation was being conducted following complaints about the female manager who had hired her and the employee was asked to participate in the investigation as a witness. The employee was assured that the investigation was not about her and that she need not be concerned about the investigation. On this basis, the employee decided not to bring a support person to the interview.

At the employee's interview with the investigator, she received additional information. Relevantly, the matters under investigation involved allegations that the employee's female manager was in a relationship with the employee, that the employee's manager failed to disclose their relationship when she hired the employee and that the manager had asked for the employee to be rostered off so that the manager could take the employee on holiday.

The employee denied that she was in a relationship with her manager or that they had gone on holidays together. The employee was concerned that the allegations disclosed that her colleagues thought she was gay. The employee told the investigator that she felt 'quite discriminated against'.

Following the interview, the employee claimed that she felt quite distressed. She claimed that the cause of a subsequent psychiatric illness was being asked personal questions about her own private relationship and private life during the investigation.

What were the consequences?

While the QIRC found that it was reasonable management action for the employer to investigate the allegations that had been made, it found that the investigation had not been undertaken in a reasonable way. In particular, the employer's failure to disclose the true nature of the investigation and the sensitive nature of the allegations was criticised.

The QIRC found that, in reality, the subject matter of the investigation directly impacted on the employee in terms of her continued employment and in terms of the scrutiny of the employee's personal relationships by her employer. In context, the investigation was about the employee and it was misleading to have told the employee otherwise.

The employee was not forewarned about the matters that were to be discussed at the interview or told that the nature of the allegations meant that the employee would be asked some sensitive personal questions. The QIRC found that the failures of the investigation were especially unreasonable given that the inquiries may have had ramifications for the employee's employment.

The QIRC found that the employer should have provided the employee with sufficient information before the interview to enable her to make an informed decision about whether to bring a support person. Alternatively, the employer should have told the employee about the sensitive nature of the questions she would be asked at the start of the interview, and then adjourned the interview to allow the employee to access a support person.

Given the personal and potentially sensitive nature of the matters involved, the QIRC concluded that it was unreasonable management action for the employer not to have undertaken some preliminary inquiries to ascertain whether the complaint had some foundation prior to the interview. It also found that the interview was held prematurely, before the terms of reference for the investigation had been formally amended to include the allegations involving the employee.

Key lessons for employers

• This decision highlights the importance of carefully planning and managing workplace investigations, particularly into allegations of a sensitive or personal nature. In this case, the mismanagement of the investigation resulted in the employee developing a psychological injury, for which the employee was entitled to workers compensation.
• Employers should be aware of and have regard to the health and safety of workers involved in investigative processes.
• Employers should ensure that any internal investigators have received appropriate training and are aware of the legal context surrounding the allegations involved.

Gadens Lawyers has developed a training module on Investigating Employee Issues, which is designed to assist human resources staff and managers to navigate the complex issues involved in conducting workplace investigations. For further information, please contact us.

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This report does not comprise legal advice and neither Gadens Lawyers nor the authors accept any responsibility for it.