Key considerations for inquiries or investigations — purpose, waiver and privilege

In circumstances of alleged employee misconduct, it is important that an employer has evidence indicating the decision to discipline or dismiss was valid and defensible and not made for unlawful reasons.

Written by the LexisNexis Legal Writer Team

In circumstances of alleged employee misconduct, it is important that an employer has evidence indicating the decision to discipline or dismiss was valid and defensible and not made for unlawful reasons.

One important step an employer may take is to inquire into or investigate the allegations so that the employer is able to reasonably determine the reasons for the misconduct.

This should be read with Guidance Note — When is misconduct a valid reason for dismissal?

Obligation to make inquiries and obtain response to ensure fair process

In the context of an unfair dismissal claim under Pt 3-2, Fair Work Act 2009 (Cth) (FW Act), the Fair Work Commission (FWC) is likely to conclude that a dismissal for serious misconduct is harsh, unjust and unreasonable if the employer:

• failed to take reasonable steps to investigate the allegations; or
• did not give the employee the opportunity to respond to the allegations.

The purpose of the employer’s investigation (or inquiry) in this context is to find out why the conduct happened so as to inform the employer’s belief regarding the allegations.

The investigation will also provide some insight as to whether there are extraneous circumstances or reasons which may excuse (either partially or fully) the conduct.