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Patrick H.
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 5357
Experience:  Dip Law LPAB - Sydney based lawyer
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Background information. I am working on an F8 General

Customer Question

Background information. I am working on an F8 General Protections application before FWA. It is in early stages and a listing for hearing is on 8th March in regards ***** ***** application for more time. I filed an F8 based on "sexual harassment" in the workplace after the employer terminated my probation based on an altercation that never occurred. How the supervisors investigated the alleged altercation was by asking the person making the allegation just to write them an email describing what happened.My question is what legislation exists for workplace investigations procedures. I have worked in companies before where if allegations are made against another employer the company will get a supervisor to compile witness statements, put it to all parties to respond and get an impartial person to make a decision based on evidence.As above none of that due process occurred and they dismissed me based on an email from another employee and no investigation was conducted, no witness statements compiled and no background information gathered and certainly no impartial manager or supervisor at the company made a decision. It was instead a rushed and spur of the moment decision I believe was a ruse to quickly get rid of me for making an allegation of sexual harassment against another employee.Does any legislation exist for workplace investigations and what procedures should a workplace follow. I am looking for precedents in that I can take to FWA to deal with the false allegation and sloppy non investigation that took place.The workplace was in Yulara, NT with a large company with more than 15 employees. I was there for under 6 months so the only chance of redemption is through the F8 General Protections form.
Submitted: 10 months ago.
Category: Australia Law
Expert:  Patrick H. replied 10 months ago.

There is no legislation which describes the way investigations are to be conducted, but if an employer relies on an investigation approach to justify dismissal or other disciplinary action, a court will take a dim view if it appears the investigation was not conducted in a reasonable manner and failed to follow basic principles of procedural fairness. So for example if an employer sacked a worker on the basis of sexual harassment, but had failed to either verify any of the allegations made by a victim, and failed to give the accused worker a reasonable opportunity to give their side of the story, a court would likely find the dismissal was unfair and award the worker damages.

What constitutes reasonable in any particular circumstance will vary, but it is true to say that courts expect larger organisations to address matters in a formal and procedurally reasonable way than they would say an employee with only one or two staff.

If you need to look up legal cases I would recommend Austlii which is a publically available legal database with most recent significant court and tribunal cases, and which you can search by terms:

http://www.austlii.edu.au/

They include a database of FWA cases too, so you likely will find something on point if you try using a few different terms.

http://www.austlii.edu.au/au/cases/cth/FWC/

Good luck and PLEASE RATE MY ANSWER.

Patrick

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