Do you have to address every issue raised in an investigation?

The Federal Court’s decision in Singh v Sydney Trains provides useful guidance for employers and those investigating misconduct allegations.

In November 2016, Mr Singh was dismissed after an investigation into two safety incidents.

Since then, there has been protracted litigation between the parties and Mr Singh’s claims for an unfair dismissal remedy have been dismissed by the Fair Work Commission.

In June 2020, Mr Singh applied to the Federal Court for an order setting aside the decision of the Fair Work Commission on the basis that the Commission had failed to properly exercise its jurisdiction.

As Justice Flick neatly summarised,

“The failure was said to arise by reason of the Commission not properly addressing a number of “clearly articulated” submissions which had been advanced.”

Justice Flick dismissed the application. He concluded (among other things), that,

“there was no duty upon the Commission to resolve each of the submissions advanced on behalf of Mr Singh, the duty being to resolve the gist of the substantive allegation being made against him”.

The approach taken by His Honour serves a useful guide to those investigating allegations of misconduct.

It highlights the importance of engaging with the “gist of the substantive allegation” being investigated.

It also supports the view that it is not always necessary to specifically address every issue raised. As Justice Flick stated,

​“There remains no duty upon an administrative decision-maker to expressly refer in its reasons to every submission and every piece of evidence that may be available for consideration. In resolving the gist of a submission, there is no necessity for a decision-maker to address each and every piece of evidence or conflicting evidence of relevance to the gist of the submission.”