The importance of procedural fairness during a workplace misconduct investigation is pivotal and must be observed to ensure integrity in the process and mitigate the risk of violating basic employee rights.
Whether the case involves allegations of misconduct or performance issues, management must ensure the preservation of permanent and casual employment rights.
Before we discuss how to protect employee rights for procedural fairness, it’s important to know what is procedural fairness?
Procedural fairness refers to making an impartial administrative decision through an appropriate procedure. Employers must ensure procedural fairness when it comes to a workplace investigation. This means the accused person(s) should be afforded a fair opportunity to respond to any allegations against them. The investigator should then carry out an unbiased investigation to collect relevant evidence, review the findings, and make recommendations in respect to the final outcome.
It’s important to note that the Australian Fair Work Commission can penalize employers who do not observe procedural fairness in instances where an employee has been dismissed or where an employee’s reputation has been unfairly damaged.
When the HR department receives a complaint against an employee, they must take appropriate action to investigate the matter, whilst informing the accused person of the investigation proceedings and specifically, the allegations against them.
As an investigator, you can provide the Respondent (accused person) with written communication that sets out the allegations and include the following:
Management should keep the Respondent in the loop when they receive a complaint. However, there are certain exceptions when you need to consider the relative risks of the Respondent potentially harming the Complainant or tampering with evidence.
Regardless of the allegation, the Respondent has every right to be heard. You should give them an equal chance to share their side of the story. For this purpose, it’s best to schedule an interview.
During the interview, you should ask them relevant questions about the allegation. Make sure you ask neutral, unbiased questions designed to obtain facts and refrain from criticizing them for any past, unrelated behavior indiscretions.
It’s essential to collect all the evidence and not ignore anything just because it doesn’t align with your perspective. For that, you may interview the involved parties and ask them for any evidence to support their statement. Also, make sure you keep a record of evidence collected via independent sources.
For procedural fairness, you should also ensure that a neutral investigator conducts the investigation. This way, the Complainant or Respondent is less likely to complain or protest about an unfair process.
Once the investigation is concluded and the findings are presented to the Employer, it is important that any action taken in response to the findings is undertaken by an authorized representative from the Employer to avoid any conflict of interest with the investigator.
At the conclusion of the investigation, management should inform the employee about the decision in line with their rights under law.
Here are a few prominent factors that can lead to a biased decision that should be considered:
When preparing recommendations or a decision, you should put your personal feelings aside. You may have heard negative rumors about the said person; however, under such circumstances, make sure your negative feelings don’t affect the decision which should be free of bias and based only on the available evidence.
Interviews during an investigation process can be confronting for some employees. They may feel uneasy recounting the incident and accordingly, should be informed about the right to a support person. But make sure the support person has no stake in the investigation process.
A support person helps the interviewee stay calm. However, they can’t interfere with the interview proceedings. Accordingly, you should guide the support person about their role and boundaries before the interview. If they continue to disrupt the interview, you should reschedule it and negotiate with the interviewee to choose another support person.
Management may decide to dismiss or warn an employee on the grounds of performance issues. Make sure you keep in mind an employee’s rights during any performance counselling meetings.
Clearly defined roles and key performance outcomes must be articulated to an employee, including the minimum competency levels the employee must meet to fulfill the requirements of their role. Performance against these pre-defined competencies should be reviewed regularly in consultation with the employee, including any corrective actions to address any under-performance. Full transparency is strongly recommended when undertaking performance review meetings.
Employees should be afforded an opportunity to share their point of view during any performance review meetings, including reviewing KPI’s if they are deemed to be unrealistic.
It is critical that all evidence is collected when reviewing and assessing performance related issues and that any performance review meeting should only focus on facts rather than perceptions. Any actions taken to extend probationary periods, mutually commit to a performance development plan, or termination of the employee should be free of bias and based exclusively on facts.
Procedural fairness is a must whether you’re dealing with performance management or misconduct cases. All employees have rights under Fair Work laws and should be afforded an opportunity to respond to allegations that is free from bias. This includes the availability of a suitable support person.
Employers should protect employee rights to gain the trust of their workforce and mitigate the risk of facing legal action that may arise due to a lack of procedural fairness.