Court of Appeal Finds Heavily Written Investigation Report Denied Employee Procedural Fairness

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The Victorian Court of Appeal (To research) recently ruled that the State of Victoria (by its department, the State Revenue Office) (SRO) by the “heavy” drafting of an investigative report into allegations of harassment against an employee, Mr. Tobias Tucker, denied Mr. Tucker “procedural fairness” and failed to comply with the SRO’s obligations .

Mr. Tucker requested a statement alleging that the SRO failed to meet the obligations of procedural fairness in the investigation. The Court upheld Mr. Tucker’s complaints regarding the unfairness of the harassment investigation due to the unequal information available to the parties:

“Harassment in the workplace is a serious problem and it is likely that many employers are reluctant to hire someone who has been convicted of such behavior. This reluctance can be alleviated by a statement by this Court that the harassment findings against the plaintiff were the result of an unfair investigative process. “

The Court found that Mr. Tucker was entitled to the relief he sought on the ground that the SRO failed to conduct the harassment investigation in accordance with its obligations.

Fund

Mr Tucker was employed by the State of Victoria and began working at SRO in 2011 as a lawyer in the customer service and debt management branch and was promoted to Senior Counsel in October 2013. The job of Mr. Tucker was governed by a contract and a document entitled “Acceptance of Terms of Employment” which required Mr. Tucker to comply with SRO workplace policies and procedures as well as its legal guidelines.

The 2016 Victorian Public Service Agreement (VPSEA) also applied to Mr. Tucker’s employment. The VPSEA contained clauses dealing with termination of employment and the OAR’s professional misconduct investigation processes and disciplinary proceedings. Section 21 of the VPSEA sets out the obligations of SROs regarding investigative processes, providing information to employees and enabling them to respond to allegations, including a specific requirement that these processes be conducted in accordance with the requirements of “Procedural fairness”.

In 2017, Mr. Tucker was the subject of two workplace investigations into allegations of harassment and inappropriate searches of client files. After these allegations were found to be broadly founded, the SRO offered to issue her a warning regarding the harassment allegations and terminate her employment due to inappropriate searches of client files.

Obligation to ensure “procedural fairness”

Mr. Tucker argued that the SRO failed to provide him with procedural fairness by failing to comply with the information requirements set out in Section 21 of the VPSEA during the two investigations.

The Court found that Mr. Tucker had not established that SRO violated any provision of the VPSEA or that he was denied procedural fairness regarding the investigation of unreasonable searches of client files.

However, in the context of the harassment investigation, Mr. Tucker was able to demonstrate that the SRO had breached its obligation under section 21 by not affording him the appropriate opportunity to respond to the allegations. This failure was due to the fact that the SRO had largely drafted the external report on which the harassment allegations were based, which meant that it did not have the relevant information to respond correctly before disciplinary action was taken against it. against him.

Given the nature of the redactions in the investigation report, Mr. Tucker was unable to determine the evidentiary basis for the conclusion. This prevented him from providing a meaningful response to the findings or why the proposed disciplinary action was not justified on that basis. This meant that Mr Tucker and the SRO were not placed “on an equal footing – in terms of the information they had – to assess whether the findings were founded”, which constitutes a denial of procedural fairness.

The Court found that the SRO’s denial of procedural fairness to Mr. Tucker meant that the findings of the harassment investigation were unfair, which made Mr. Tucker “feel justified”, stating that “a such justification would be reinforced by the issuance of a formal court order. in his favour”.

Key lesson

This case highlights the importance for employers when conducting workplace investigations to ensure that the process complies with applicable investigative and disciplinary procedures. These obligations typically arise from workplace policies and procedures and industrial instruments.

Failure to comply with these obligations means that a faulty investigation and disciplinary process may jeopardize a disciplinary result even if that result is based on proven allegations, and the decision to sanction the employee would otherwise be justified.

A copy of the decision is available here.

This publication does not cover any material matters or changes in law and is not intended to be considered a substitute for legal or other advice which may be relevant to the reader’s specific circumstances. If you have found this publication of interest and would like to learn more or would like legal advice relevant to your situation, please contact one of the individuals on the list.

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