A robust, well-written workplace investigation report is your best defense in an unfair dismissal claim. Worklogic director Jodie Fox examines the benefits of writing comprehensive investigative reports after a recent decision by the Fair Work Commission found Worklogic’s report to be consistent and detailed.
Worklogic Report Withstands FWC Scrutiny
Recently one of Worklogic’s reports was examined in the Fair Work Commission and found to be consistent with the Deputy President’s own assessment and instrumental in successfully defending the claim of unfair dismissal.
When we teach our popular Conducting Effective Workplace Investigation Course, many participants want to know how to write an effective workplace investigation report?
Writing reports is possibly the most difficult of the steps in the investigation process — the report is the synthesis of the allegations, evidence gathering and responses to contradictory evidence. As the record of the investigation, the report must reflect all the steps that have been taken and articulate the investigator’s considerations in a way that is easily understood by a person reading it. While there are a number of technical aspects to writing a good report, there are also some broad principles to keep in mind.
Fit for Purpose
A good report is fit for its purpose. One way of determining the purpose of the report can be by looking at how serious the allegations being investigated are. If the allegations are relatively minor, and you want to establish findings of fact before perhaps having a difficult conversation with a manager about leadership style, then the report can be a relatively tight summary of the evidence gathered, and the conclusions reached.
If you are investigating serious allegations which have a greater risk to the organisation or, if proven, lead to disciplinary action against or possible dismissal of the respondent, then the report needs to be detailed and comprehensive and needs to clearly show the analysis that the investigator has undertaken in making their findings. A written report must contain enough information to ensure that it is able to withstand any third-party scrutiny of not only the ultimate findings of fact but also the actions and decisions of the investigator during the course of the investigation.
In a recent decision, Deputy President Sams reviewed the Worklogic report and found that it made sound findings of fact on the balance of probabilities. The Deputy President said:
In my view, Ms Roberts’ investigation and Report were balanced, detailed, thorough and exhaustive. Her approach was empathetic, entirely appropriate and professional. She interviewed relevant persons and made sound findings of fact, on the balance of probabilities. Despite the applicant’s nit-picking attempts to discredit Ms Roberts and her report; see: Ms Robert’s cross examination above, these attempts were singularly futile and unsuccessful.
I have read the full report, the witness interviews and relevant documents. While I am obviously not bound to accept Ms Roberts’ analysis and findings, and I must make my own findings and conclusions, in substance, the Report is entirely consistent with my own assessment and conclusions.
Write for your Audience
Like all good pieces of written communication, a workplace investigation report is written for its audience. When writing you should consider who will read the report: Is it the line manager? Senior management? Does the respondent get a copy of the report? Is this a report likely to be reviewed by an external body? Knowing the answers to these questions will help you craft a report that is fit for purpose.
A Report should be Self-Explanatory
No matter the intended audience of the report, an important thing to bear in mind as an investigator is that the audience doesn’t have the same context that you have. It is important to write your report so that it is comprehensive and self-contained, so that anyone picking up the report can get a full understanding of the methodology of investigation, the allegations, the process and the findings just from reading the report.
In an interesting decision of Hammam Hijazi v Calvary Health Care ACT Limited [2021] FWC 13 (which we note is currently under appeal) the Fair Work Commission found that the written investigation report tendered by Calvary Health Care was able to be wholly relied upon by Calvary in defending an unfair dismissal application. This was so even where Calvary did not tender evidence from the original complainant or witnesses in the matter. Deputy President Dean stated that:
The [Workplace] Investigation is in my view relevant to the Commission’s determination of the issues which need to be decided. I am satisfied in this regard that the [Workplace] Investigation constituted a full and extensive investigation, that Mr Hijazi was given a reasonable opportunity to respond, and that the findings were based upon reasonable grounds. It is, however, appropriate to place less weight on the [Workplace] Investigation than might otherwise be the case because it is hearsay, which I have done. This is particularly so given Mr Hijazi was unable to test the evidence by way of cross examining those who complained about his conduct.
A comprehensive, well-written investigation report which clearly covers the investigative work undertaken and the reasoning of the investigator in making findings can give the employer confidence that the matter has been fully reviewed and the conclusions relied upon.
These two cases demonstrate the value of a strong, comprehensive and defendable investigation report. Happily, the majority of workplace investigations do not end up being scrutinized in the courts, however the approach that we take at Worklogic is to proceed at every step as if the matter will be reviewed.
Upcoming training from Worklogic:
Conducting Effective Investigations- online
Whether you are an HR professional, manager or compliance officer, you may need to conduct an in-house workplace investigation in the future, or already have conducted one. This practical course gives you the knowledge and skills needed to conduct an effective, fair and legally sound workplace investigation.
- Date: March 23rd and 24th, 2021.
- Duration: 2 sessions over 2 days. 9:30am-1pm
- Venue: Online
- Presenter: Jason Clark
- Price: $899.00
