Workplace Investigations and Employee Rights: A Case Analysis

However, the question arises: are employers obligated to provide employees with the investigation report? This issue was central to the recent case of Aurizon Operations Limited v Cameron Webb [2024] FWCFB 318, where the Full Bench of the Fair Work Commission explored the employer’s duty to disclose investigation reports and the balance between confidentiality and employee rights.

The legal framework and facts:

It is established in law that employees have the right to be informed about the nature of the allegations made against them as part of an investigation and must be afforded procedural fairness. This includes the right of an employee who is the subject of an investigation to be provided with sufficient information regarding an allegation or a complaint in order to properly respond. 

The case of Aurizon Operations Limited v Cameron Webb highlighted these principles. On 8 January 2024, Aurizon Operations Limited provided Mr Webb with a “Letter of Allegations” regarding alleged misconduct and required him to attend an “information gathering meeting” the following day. 

Aurizon then received an email from Mr Webb’s union stating that Aurizon had failed to fully disclose the allegations and had not provided Mr Webb with enough time to prepare a response, as required by the Aurizon NSW Coal Operations Enterprise Agreement 2021 (the Agreement). Before the meeting, an application with the Fair Work Commission, seeking intervention under section 739 of the Fair Work Act 2009 (Cth) was then filed on Mr Webb’s behalf.

Following the meeting, upon the allegations being substantiated on the balance of probabilities, the employee was invited to a show cause meeting to provide a response as to why his employment should not be terminated. On multiple instances, Mr Webb and his union representative requested a copy of the investigation report.

Despite the application before the Fair Work Commission and Mr Webb’s requests, Aurizon refused to provide Mr Webb with a copy of the investigation report, claiming it was “confidential”.

Findings of the case

Initially, it was determined that clause 12.1 of the Agreement required Aurizon to provide Mr Webb with the investigation report. However, upon appeal, the Full Bench reversed this, concluding that the Agreement did not impose such a requirement. 

However, the Full Bench agreed that Aurizon’s handling of the investigation failed to meet the standards of natural justice and due process.

Drawing on the case of Coutts v Close [2014] FCA 141, the Full Bench affirmed that natural justice principles require that an affected employee be informed of the “nature and content of adverse material that is credible, relevant, and significant”, especially when such material is sourced from third parties. In this case, Aurizon had failed to provide Mr Webb with adequate information about the allegations and supporting evidence.

The Full Bench concluded that while the investigation report itself did not have to be disclosed, the adverse evidence or "ancillary information" which may be used to make decisions regarding the allegations must be presented to the employee.

Key takeaways for clubs

For clubs, this case highlights the importance of conducting workplace investigations with transparency and adherence to due process. While employers may not always be required to provide investigation reports, they must ensure that employees are fully informed of the nature and substance of allegations or complaints, and are given a fair opportunity to respond. This does not mean that employees are to be provided with a copy of the original complaint, but instead must be provided with sufficient information to respond and an opportunity to provide their version of events. 

Maintaining fairness, transparency and natural justice is not only a legal obligation but also crucial for fostering trust and integrity within the workplace.

How can we help?

Member clubs are reminded that the ClubsNSW WR team have template grievance and resolution policies available and can otherwise assist members with the investigation process and necessary correspondence to set up an investigation in the workplace.

For further advice, clubs can contact the ClubsNSW WR Team to discuss their specific circumstances via ClubAssist.