Procedural fairness in workplace investigations
In Enterprise Agreements, we generally have a provision regarding the process that a school must undertake when conducting a workplace investigation into conduct or performance. The Union’s ability to challenge a school’s process during a workplace investigation will depend on the terms of the Enterprise Agreement. The general rule is that the school should apply procedural fairness during the process. Unless the EA dispute clause contains an ‘industrial matter’ the Union may only be able to challenge the decision through unfair dismissal or general protections proceedings.
There are a lot of cases about what ‘procedural fairness’ means. However, put simply, there are four main elements to it:
The right to know the case one has to meet: This means that you must know the case against you. In situations where limited information is given to you about allegations, the Union can write to the school to get further information about what exactly the case against you is. The information that the school intends to rely on should be put to you in an investigation. We advise our members to contact us as soon as you receive any information about a possible investigation. The sooner we are involved, the more likely the process will run fairly and smoothly.
The hearing rule: This means that you are given a reasonable opportunity to respond and put your case forward. You should be able to put your own evidence forward and any witnesses that you think should be interviewed. The Union can assist with preparation of this material and advise you about your options and how to best frame your case. The school should give you a reasonable amount of time to respond, and if they don’t the Union can write to the school on your behalf to request further time as you will need time to consider the allegation and evidence the school has put to you.
The rule against bias: This means that the employer/decision-maker must not prejudge or have a personal interest in the outcome and must be unbiased in the matter to be decided.
The ‘no evidence’ rule: This one can be an issue, because some employers will refuse to provide the investigation report or the details of how they arrived at the outcome. The no evidence rule requires that the decision ultimately must be based on logical evidence and that irrelevant considerations should not be taken into account. The decision must not be unreasonable, that is a reasonable person should be able to reach a decision based on the evidence. The Union can inquire in situations where an outcome is reached and there is a real question about the veracity of the evidence.
Ultimately, the power of the Union to agitate procedural fairness will depend on the circumstances, including what the Enterprise Agreement says and what processes the school has followed. In any event, it is wise to contact us to get some advice, even if you think the school is following the right processes.