An important component of a fair investigation is that the investigator obtain all relevant evidence before forming their conclusions.
Often, obtaining all the relevant evidence is not straightforward. Documents may have been lost or destroyed. And witnesses (including any person accused of misconduct) may be unwilling or unable to participate in an investigation. In this note we look at 5 reasons why a relevant witness (including any subject of the investigation), can decline to participate in an investigation or answer a question put by an investigator. Former employees Often, an investigation will require you – as the investigator – to at least try to speak with people who are no longer with the employer. And often, those people will, for a range of reasons, not want to participate in the investigation. In general, former employees are not under any obligation to participate in a workplace investigation. Accordingly, unless there is a specific contractual or statutory obligation that compels them to participate, there are limited avenues for an investigator to obtain their evidence. Typically, all the investigator can do in those situations is to try to understand the reasons why the former employee does not want to take part and to see if there is any means to address those concerns. In the remainder of this note, we will assume that the person being asked to attend an interview – or being interviewed – is a current employee. Lack of proper purpose for the investigation A precondition to the employer’s ability to direct an employee’s participation in an investigation is that the investigation must be conducted in good faith and for a proper purpose. An employer cannot use the cover of a purported workplace investigation to extract information from an employee. Further, the test of whether something is being done for a proper purpose is objective. Even though the employer might subjectively believe it is reasonable to investigate an issue, if that belief is objectively unreasonable, then the employee cannot be directed to take part in the investigation. For example, in the recent case of Matthews v San Remo Fisherman’s Co-Operative, the Fair Work Commission considered the question of whether a pelican feeder (yes, you read that right) had been unfairly dismissed after (among other things) failing to provide the employer with certain information about his outside-hours activities. The Commission decided that – as those activities were neither inconsistent with the obligations of the employee’s role nor inconsistent with the employer’s interests – the employee was under no obligation to respond to the request. Unreasonable conduct of the investigation The obligation to respond to questions will only arise if the investigation is being conducted in a reasonable way. In Lamaq v Smerff Electrical, the employer had what ostensibly appeared to be a valid concern that some employees were doing cash jobs for clients (and thus effectively stealing the employer’s revenue). The employer asked one of the apprentices (who was not suspected of receiving any benefit from the cash jobs) for information about what had been going on. The employer’s request for information was made in a long, offensively worded text message that ended with following three sentences – "Your choice today bro. Info or job by 4pm. I’ll find out about that [expletive] one way or another even if not through you and I will [expletive] him. So you’re (sic) not stopping it from happening by keeping quiet. I’ll give ya till 4.” The apprentice did not respond to the request for information and was subsequently dismissed for (among other things) failing to provide the information requested. The Commission had no difficulty in finding that the employee’s “silence in the face of a tirade of expletive laden and threatening abuse … is entirely understandable”. Medical conditions Sometimes the subject of the investigation, or a witness, may be medically unable to participate in the investigation (whether that medical condition is related or unrelated to their employment or the investigation). Being the subject of – or a witness in – a workplace investigation can be stressful, and it is not uncommon for people to have a stress related medical reason for declining to take part. It is entirely reasonable for an employee to decline to take part in an interview on medical grounds (provided, of course, that they have appropriate medical evidence to support this position). When that situation arises, the investigator will need to make a decision about how to proceed. That decision may involve a delicate balancing exercise. Essentially, there are two competing options – 1. Delay the investigation until the person’s condition improves and they can take part. The benefit of this approach is that it avoids finalising the investigation without having all relevant evidence. 2. Continue the investigation (and potentially conclude the investigation) without that witness’ evidence. The benefit of this approach is that it avoids the risk of delay – including the risk of additional stress to other participants in the investigation while the investigation is unresolved. The privilege against self-incrimination In some cases witnesses – whether they are the subject of an investigation or not – will refuse to answer questions citing the privilege against self-incrimination. In Grant v BHP Coal the Full Court of the Federal Court discussed the application of this privilege in the context of workplace investigations. The Full Court accepted that the privilege could apply in workplace investigations. However, the Full Court’s comments suggest that the application of the privilege could be limited. In particular, the privilege does not apply if the witness is simply concerned that their evidence could contribute to some adverse finding being made against them in the employment context. The Full Court observed that – 1. “The claimant must show that there is a real and appreciable risk of criminal prosecution if he or she answers, and that he or she has a bona-fide apprehension of that consequence on reasonable grounds.” 2. That situation will not exist “if a witness’ prior statements have already exposed the witness to a risk of prosecution where giving answers will not lead to any increase in jeopardy to which the witness is already exposed”. Further, the Full Court stated that it is up to the witness “claiming privilege to assert it and to identify its precise basis”. Other reasons There are a range of other reasons why employees may not wish to take part – or may not provide full and honest evidence – in a workplace investigation. They may be concerned about breaking a “code of silence” or “ratting” on fellow employees. Or they may be concerned about some personal consequence for them if they give evidence which is against the interests of someone senior to them in the corporate hierarchy. The Fair Work Commission has been very clear that these are not proper bases for refusing to participate fully in an investigation. For example, in Francis v Patrick Stevedores, the Commission stated that, to the extent any “code of silence” exists, “it is inconsistent with an employee’s obligation to be open, frank and honest with one’s employer when asked about serious issues in the workplace”. Of course, while employees have an obligation to be “open, frank and honest” in any investigation, the employer has clear obligations (at common law, under the employment contract and by statute) to ensure that employees are protected from any adverse consequences of their candour in the investigative process. Conclusion Subject to the exceptions discussed above, employees are obliged to take part in any workplace investigation and to answer questions to the best of their abilities. A final point is to consider what consequence might flow for an employee who refuses to take part in an investigation - or provides intentionally incorrect or incomplete information to an investigator - when none of the relevant exceptions to participation apply. In short, that conduct may, in itself, amount to serious misconduct by the employee. In extreme cases, the failure to participate in a way that is “open, frank and honest” may justify dismissal. In Vaughan v Anglo Coal an employee was dismissed after failing a workplace drug test which showed he had taken methamphetamine. The reason for the dismissal was not only the test result itself, but the employee’s failure to be open and honest about the test result when he was first interviewed about it. The employee initially claimed that he had only taken cold and flu tablets before later confessing to having taken some pills at a party. The employer said that this dishonesty had broken the relationship of trust and confidence between employer and employee. The Commission accepted that the failure to initially be open and honest – despite several opportunities – did break the relationship of trust and confidence and, accordingly, was a valid reason for dismissal.
1 Comment
Lana
25/7/2019 12:42:37
Great articles guys. Really informative and well written.
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