1. Conducting an Investigation- lessons from AIRC decisions.
Dominica Whelan,
AIRC Commissioner
17 October 2007.

2. What can we learn? What the Commission does
Who conducts the investigation?
The rights of the employee
Responding to the employee’s case
Reaching conclusions
Taking action

3. The role of the Commission
Was there a valid reason for dismissal?
Was the employee notified?
Was the employee given an opportunity to respond?

4. Harsh, unjust or unreasonable
Unjust, because the employee was not guilty of misconduct;
Unreasonable, because it was decided on inferences not reasonably drawn;
Harsh, because of the consequences, or because disproportionate to the misconduct.

5. Necessary elements Facts are established
Allegations are put to the employee
Reasonable opportunity to respond
Penalty is appropriate
Employer followed its own policies, procedures and industrial agreements.

6. The evidence
Facts which existed at the time of the dismissal, including facts which only came to light after.
Findings made by an inquiry
Test is what the Commission finds, on the balance of probabilities, to have happened.

7. The employer’s findings
Will carry weight if:
ƀ the investigation was full and extensive
ƀ a reasonable opportunity to respond was given to the employee
ƀ the findings were based on reasonable grounds

8. Who conducts the investigation?
Outside persons
Not a person making the allegation
If reviewed, not by person involved in original decision
Not an inexperienced person, or one too close to the people involved
Conflict of interest?

9. The employee’s right to know the allegations
Need to put critical allegations
Need to put additional material obtained in the course of the investigation/review
Need to inform employee of possible consequences
Need to provide key documents

10. Responding to the employee’s explanations
Contact person’s nominated by employee or who give statements
Follow up information provided by the employee
Interview all witnesses
Be wary about accepting assessments made by others

11. Reaching conclusions Attempt to eliminate alternative scenarios.
‘Third hand’ information should not be relied upon.
Do not rely on personal subjective views.

12. The conduct of the investigation
It is not an inquisition
Comply with requirements of policies, procedures and workplace agreements
Remember a finding that a termination is not harsh, unjust or unreasonable does not prevent an employee from arguing that it breached an agreement.

13. Is the penalty appropriate?
Consider the circumstances, even if the misconduct is found
Have other employees been treated differently?
Consider the person involved, their characteristics and the impact of termination on them.

14. In summary Investigator - impartial and objective
All the material should be known to the employee
Any response followed up
Conclusions based on evidence
Is decision to dismiss reasonable?