Are employers required to produce investigation reports to workers?

When an employee makes a complaint or raises an allegation in the workplace, a workplace investigation is commenced to determine whether the allegation is substantiated. This will generally involve the collation of evidence relevant to the complaint and at times the production of an investigation report.

It is accepted at law that employees have the right to be informed about the nature of the investigation and to be treated fairly and impartially. However, are obligated to provide investigation report to employees?

This question was the subject of much debate in the recent decision of Aurizon Operations Limited v Cameron Webb [2024] FWCFB 318.

Facts

On 8 January 2024, Aurizon Operations Limited (Aurizon) provided Mr Webb a “Letter of Allegations” regarding alleged misconduct and directed him to attend an “information gathering meeting” the next day. Subsequently, Mr Jason Hart, RTBU industrial officer, followed up with an email to Aurizon’s Regional Operations Manager regarding Aurizon’s failure to “fully provide” Mr Webb with the allegations made against him and to give him reasonable time to prepare a response, in alignment with the obligations set out in the Aurizon NSW Coal Operations Enterprise Agreement 2021 (the Agreement). Prior to the meeting, Mr Hart filed an application for the FWC to deal with a dispute under section 739 of the Fair Work Act 2009 (Cth).

Aurizon maintained its refusal of providing Mr Webb with a copy of the investigation report, claiming that it “was confidential”.

Findings

It was initially concluded that clause 12.1 of the Agreement required Aurizon to provide Mr Webb with a copy of the investigation report. However, following an appeal from Aurizon, it was determined that the Commissioner erred in this determination and the Full Bench of the FWC found that clause 12.4 of the Agreement did not require Aurizon to do so. Nevertheless, it was upheld that Aurizon did not act in alignment with principles of natural justice and due process towards Mr Webb during the investigation.

By reference to the case of Coutts v Close [2014] FCA 141, the Full Bench found that the requirements of natural justice extend to “informing the affected person of the nature and content of adverse material that is credible, relevant and significant obtained from sources other than the affected person“.

Thus, the Full Bench found that the principles of natural justice and due process undoubtedly require an investigator to put the substance of the adverse evidence to a respondent, including any “ancillary information” that was referred to in reaching a finding in respect of the allegations.

Key Takeaways

Workplace investigations can be complex and the balance between transparency and privacy can be tense.

The Aurizon decision serves as an important reminder for employers to ensure they have a robust Workplace Investigation Policy which deals with the steps of an investigation process to ensure adherence to the principles of natural justice and due process in carrying out workplace investigations.

* This article was prepared with the assistance of Zara Arnold