24 February 2021

Investigation reports as evidence for dismissal - A help or hindrance in the Fair Work Commission?

In this case, the Commissioner found that the investigation report was hearsay, and less weight than direct testimony.
Australia Employment and HR
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In brief - Decision in Hammam Hijazi v Calvary Health Care ACT Limited [2021] FWC 13 suggests that while investigation reports can be used as credible evidence to support a dismissal, key witnesses interviewed as part of the investigation should be called to give evidence at trial so that that they can be cross-examined

When an unfair dismissal matter progresses to a hearing in the Fair Work Commission, parties will call witnesses to give evidence to assist the Commission in reaching a decision. But what happens when an employer tenders a workplace investigation report instead of calling witnesses? This question was examined in Hijazi v Calvary Health.

Purpose of workplace investigation reports

When allegations are made regarding an employee's behaviour, an employer may choose to engage an investigator to ascertain whether the alleged conduct actually occurred.

Investigators are ideally independent, meaning they are hired externally and are therefore not subject to any internal bias. The investigator's role is simple: to interview relevant witnesses, review relevant materials, and to decide whether, based on the evidence before them, the allegations can be substantiated, on the balance of probabilities. Throughout this process the employee in question should be interviewed and afforded the opportunity to respond to all relevant allegations.

The investigator will make findings in an investigation report, which can then assist the employer to decide what course of action, if any, needs to be taken. In some cases, the findings may be relied upon by the employer to justify a dismissal.

Tendering investigation reports as evidence instead of calling witnesses at unfair dismissal hearings

Even when the findings of an independent investigation report are used to support a dismissal, an employee may file a claim with the Fair Work Commission alleging the dismissal was unfair.

In these circumstances, an employer may decide to tender the investigation report as evidence rather than calling direct witnesses' evidence. An employer might choose to do this if witnesses are unwilling to participate in the hearing, are minors, or perhaps the employer is self-represented and does not have the resources to arrange participation of multiple witnesses. In other circumstances, an employer may choose not to disclose an investigation report in litigation because it is legally privileged.

In Hijazi v Calvary Health, the parties made submissions for and against the use of investigation reports as an alternative to leading direct evidence.

The Applicant employee submitted that:

  • the Report was inadmissible because it was based on hearsay
  • the Commission would be unable to fulfil its fact-finding function as required by the Fair Work Act 2009 (Cth) if it simply relied on the report's findings
  • the Commission could not find that the employee bullied staff members as the employer provided no first-hand evidence that this occurred, it only relied on the report.

On the other hand, the employer submitted that:

  • there is nothing preventing the Commission from relying on hearsay evidence as the Commission is not bound by the rules of evidence
  • the hearsay evidence should not be given less weight where it was "inherently believable" given the consistent evidence given by witnesses who participated in the investigation
  • the employee had admitted to the investigator that he engaged in select alleged conduct.

Commissioner finds investigation report was hearsay and gave it less weight than direct testimony

The Commissioner held that the investigation report was relevant to the determination of the issues which needed to be decided. However, the report was given less weight because it was hearsay. This was particularly so given the employee was unable to test the evidence by way of cross-examination.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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