A decision from the Fair Work Commission yesterday highlights the importance of asking open questions when conducting an investigation. If you cross-examines witnesses by asking leading questions, there is a real risk of the evidence before you, and consequently your findings, being unreliable.
The decision yesterday in Crowley v Trustees for the Roman Catholic Church, Archdiocese of Canberra and Goulburn involved an incident that occurred during a school excursion. A number of year 9 students ended up in difficulty after a kayaking trip went wrong. Happily, none of the students suffered any major injuries. An external investigator was appointed to investigate the incident and determine whether there had been any misconduct by the teacher supervising the class. The investigator ultimately determined that that misconduct had occurred and the school then decided to dismiss the teacher, Mr Crowley. At the hearing of Mr Crowley's unfair dismissal application, evidence was given by Mr Crowley, an assistant teacher who was with the group and many of the students involved. Both Mr Crowley and the assistant teacher gave relatively consistent versions of the events. Perhaps unsurprisingly, the students' recollections varied widely. Counsel for Mr Crowley challenged aspects of the investigator's report and the way in which evidence was obtained. He submitted that - "The students are led very heavily and often when an answer is given that appears either to support something which the applicant had said or which appears to not really follow the line in which the investigator was tracing in his leading questions, the investigator either shuts down the questioning or steers if off in a different direction. It is regrettable and the only reason I mention it is it will come to explain why some of the students’ evidence in these proceedings was quite different to what was before the employer." The FWC decided that the evidence did not support a finding of misconduct. In her decision, Deputy President Dean observed that - "I have already expressed a concern as to the leading nature of the questions initially asked of the students by the investigator, and which helped inform the decision ... to dismiss Mr Crowley. Given the issues already noted about the veracity of the students’ evidence, I prefer the evidence of Mr Crowley and [the assistant teacher] to the extent there is any inconsistency with the evidence of the students."
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