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Guide to Managing disciplinary investigations


Disciplinary investigations are becoming more common in the workplace today as employers and managers seek to quickly resolve internal grievances, allegations of misconduct, bullying and harassment. Left unresolved these matters can turn into very damaging long term disputes and affect staff moral, and increase the incidence of stress related illness in a workplace. The investigation of these matters is therefore a critical part of the process in identifying the relevant issues and obtaining the evidence required to effectively respond to these matters.

When investigating matters involving employees of government departments the level of complexity involved in managing the investigation process increases significantly.

This was a topic that was recently discussed by Mr Ross Jackson of Maddocks Lawyers. He provided the following guidelines when discussing some of the challenges facing the management of the disciplinary process on behalf of the Department of Human Services:

Issues to consider

  • Multiple layers of law apply to the application and management of disciplinary processes.
  • Decision makers need a working understanding of each layer of law.
  • The legal framework governing disciplinary processes includes:
  • Federal and State legislation relating to the employment relationship;
  • applicable pre-reform certified agreements; and
    • the terms of an employee's contract of employment (including express terms, implied terms and incorporated policies).
    • A common thread uniting these sources is the common law principle of natural justice, otherwise known as 'fair and reasonable' behaviour.

Natural Justice

In disciplinary processes, natural justice is satisfied where an employee is granted:

  • A chance to be heard on why an action adverse to their interests should not be taken; and access to an impartial decision-maker.
  • Public Sector Standards Commissioner defines 'natural' justice' in the context of a disciplinary process as a requirement for:
  • "[a decision maker to] act in good faith and without bias, provide an opportunity for a person whose interests will be affected by the decision to put their case before a decision is made, and that the decision is based on evidence. It is also important that participants are kept informed of progress on the matter."

The Investigation

  • Every serious allegation must be investigated: Byrne and Frew v Australian Airlines Limited(1992) 45 IR 178.
  • More serious matters should be investigated promptly and expeditiously.
  • Two rules are key to undertaking the investigative process:
  • The 4W Rule: who, what, where and when
    • The Three D Rule: document, document, document!
    • 4W Rule: Who, What, Where and When

Investigators should find out:

  • who did what;
  • when they did it; and
  • where.

It is necessary to conduct a thorough investigation, of what, where and when in which the investigator:

  • advises the employee involved of the investigation;
  • gets the facts straight and develops a concise summary of events;
  • conducts a fact-finding exercise, obtains evidence and interviews witnesses;
  • presents the evidence to the 'accused' for input.

In obtaining information from witnesses investigators should be mindful that:

  • witnesses are not prompted or 'coached';
  • statements from witnesses are only minimally edited;
  • notes from interviews are complete and dispassionate;
  • no leading questions are asked!

The Three D Rule: Document, Document, Document

Remember that any document created as part of an investigative process may later become evidence.

Detailed and comprehensive documentation is essential to rebutting future allegations that the disciplinary process was biased, unfair or incomplete.

Drafting of Allegations

Following the conclusion of an investigation, an employee must be given the opportunity to respond to allegations.

  • The employee is entitled to know enough detail about the allegations to be able to provide a proper answer.
  • The employee should be advised of the process and their rights under the process.
  • Let the employee and the employee's representative know the ground rules from the outset – preferably in writing.

Distinguishing Allegations from the Particulars of Each Allegation

  • Allegations identify the legal duty or prohibition.
  • Particulars of each allegation set out the facts that are said to call for disciplinary action and are provided for in support of the allegation.

Writing the Report after the Investigation or Hearing

  • Any report should be objective and focused on the relevant issues.
  • The report should:
    • state the relevant law and other provisions governing the process;
    • summarise the 'story so far';
    • clearly set out the allegations;
    • address the evidence for and against each allegation;
    • assess whether the allegation is substantiated.

What is the Relevant Burden of Proof?

The burden of proof is on the employer to satisfy itself on 'the balance of probabilities' that the allegation occurred;

Where an employee's employment is at stake, the standard of proof is higher: Briginshaw v Briginshaw (1938) 60 CLR 336. Mr Justice Dixon of the High Court of Australia enunciated the principles to be considered in this case when His Honour said: “The standard of proof to be applied is the balance of probabilities. Whether the allegations are to be held proved to the reasonable satisfaction of the delegate will depend upon the seriousness of the allegations made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding and should not be reached by inexact proofs, indefinite testimony or indirect references”.

The above guidelines need to be adopted in every disciplinary, ethics or misconduct investigation.

Ross Jackson, Partner, Maddocks Lawyers 





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