Drafting allegations - every word matters

How you draft the allegations against the respondent can have a real impact on whether the investigation process is fair.

A recent example of this arose in the New South Wales Industrial Relations Commission’s decision in Gaite v Commissioner of Fire and Rescue NSW. 

In that case, the Commission ordered that Mr Gaite be reinstated to his position with Fire and Rescue NSW.

Mr Gaite had conducted basic life support training for some new recruits. After the training, concerns were raised about Mr Gaite’s conduct. As a result, a misconduct investigation began.

The letter setting out the allegations against Mr Gaite included an allegation that – as a result of various matters – Mr Gaite had “victimised, humiliated, intimidated or threatened the recruits”.

In assessing whether Mr Gaite was given “a fair go all round”, the Commission observed:

“Presumably, there was a purpose behind the use by FRNSW of four separate terms to describe Mr Gaite’s behaviour and FRNSW intended each word have work to do. The evidence does not disclose, however, what meaning FRNSW attributed to each term. [The investigation report] does not draw a distinction between the various terms but [the investigator] seems to have accepted that the Allegation was sustained in all respects.

Bringing an allegation against an employee involving multiple and possibly overlapping elements can create uncertainty as to the nature of the case that the employee must meet. This does little to ensure “a fair go” to the employee.”

The important take-away for those drafting allegations in a workplace misconduct investigation is to think carefully about the precise wording of the allegations. In this case, with the benefit of hindsight, it would have been preferable for the investigator to be clear about why all four words were used and for the final report to make clear precisely what aspects of the allegation had been substantiated (and why).

The approach taken to the drafting of the misconduct allegations here stands in contrast to that taken by the employer in another recent case - Dias v Commonwealth Securities Limited. Our note of that case is here.