Australia: Court of Appeal finds heavily redacted investigation report denied employee procedural fairness

The Victorian Court of Appeal (Court) recently held that the State of Victoria (by its department, the State Revenue Office) (SRO)'s "heavy" redaction of an investigation report into harassment claims against an employee, Mr Tobias Tucker, denied Mr Tucker "procedural fairness" and fell short of the SRO's obligations.

Mr Tucker sought a declaration alleging that the SRO failed to comply with the procedural fairness obligations in the context of the investigation. The Court upheld Mr Tucker's complaints about the unfairness of the harassment investigation due to the inequality of the information available to the parties:

"Harassment in the workplace is a serious matter and it is likely that many employers may be reluctant to employ someone who has been found to have engaged in such conduct. That reluctance may be ameliorated by a declaration by this Court that the findings of harassment against the applicant resulted from an unfair investigative process."

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

Background

Mr Tucker was employed by the State of Victoria, and commenced working at the SRO in 2011 as a legal officer in the customer service and debt management branch and was promoted to senior solicitor in October 2013. Mr Tucker's employment was governed by a contract and a document entitled "Acceptance of Employment Terms" which required Mr Tucker to comply with the SRO's workplace policies and procedures as well as its lawful directions.

The Victorian Public Service Agreement 2016 (VPSEA) also applied to Mr Tucker's employment. The VPSEA contained clauses dealing with termination of employment and the SRO's investigation processes into misconduct and disciplinary procedures. Clause 21 of the VPSEA set out the obligations of SRO pertaining to investigative processes, the provision of information to employees and allowing employees to respond to allegations, including a specific requirement that such processes be conducted in accordance with the requirements of "procedural fairness".

In 2017, Mr Tucker was subjected to two workplace investigations concerning allegations of harassment and improper searches of customer records. After these allegations were found to be largely substantiated, the SRO proposed to give him a warning concerning the harassment allegations and to terminate his employment in respect of the improper searches of customer records.

Obligation to provide "procedural fairness"

Mr Tucker argued that the SRO failed to afford him procedural fairness by failing to comply with the information provision requirements in clause 21 of the VPSEA during both investigations.

The Court found that Mr Tucker failed to establish that SRO had breached any provision of the VPSEA or that he had been denied procedural fairness concerning the investigation into the improper searches of customer records.

However, in the context of the harassment investigation, Mr Tucker was able to show that the SRO had breached its obligation under clause 21 by failing to provide him with a proper opportunity to respond to the allegations. This failure was on account of the SRO heavily redacting the external report upon which the harassment allegations were based, which meant that he did not have the relevant information to properly respond before any disciplinary action against him was taken.

Given the nature of the redactions in the investigation report, Mr Tucker was unable to determine the evidentiary basis for the finding. This prevented him from providing any meaningful response to the findings or why the proposed disciplinary action was not warranted on that basis. This meant that Mr Tucker and the SRO were not placed on "equal footing – in terms of the information available to them – to make an assessment as to whether the findings had a sound foundation", constituting a denial of procedural fairness.

The Court held that the SRO's denial of procedural fairness to Mr Tucker meant that the findings of the harassment investigation were unfair, which entitled Mr Tucker to "feel vindicated", stating that "such vindication would be enhanced by the making 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 the applicable investigation and disciplinary procedures. These obligations are typically derived from workplace policies and procedures and industrial instruments.

Failure to comply with these obligations means that a flawed investigation and disciplinary process can undermine a disciplinary outcome even if that outcome is based on proven allegations, and the decision to discipline the employee would otherwise be justified.

A copy of the decision can be accessed here.

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