Queensland decision highlights importance of considering evidence that supports investigation finding

In brief 3 min read

The Queensland Industrial Relations Commission (the Commission) recently found an employer liable for a psychological injury caused by a three-month disciplinary process.¹

Key takeaways

• Employers should take care to ensure that procedural fairness is afforded to employees subject to reasonable management action, including providing prior notice of the purpose of a disciplinary meeting and giving them a genuine opportunity to bring a support person.
• Employers should exercise caution when relying on draft investigation reports to proceed with disciplinary action, with the Commission indicating that matters in a final report should be considered in their entirety to determine the appropriate progression.

Background

Mr Maher was employed by a local council as a programme leader. On 24 May 2018, the Council met with Mr Maher, advising him that he was suspended with pay, pending an investigation into allegations of bullying. On 23 August 2018, the Council issued a show cause letter to Mr Maher based on the findings of a draft external investigation report, but not based on the evidence supporting the findings because that had not yet been provided to the Council.

Mr Maher argued he suffered 'adjustment order with anxiety and depressed mood' as a result of the disciplinary process, and that the Council's disciplinary process was not 'reasonable management action taken in a reasonable way'.

The decision

The Commission decided in favour of the employee, finding that the following actions were taken in an 'unreasonable way':

• Mr Maher was not provided with any prior notice of the purpose of the suspension meeting, and was only offered the opportunity to have a support person once the meeting was underway;
• the Council issued the show cause letter before it received a final copy of the external investigation report and before it was able to consider the evidence supporting the investigation findings; and
• the show cause letter did not particularise the allegations against Mr Maher, contrary to the requirements of the Local Government Regulation 2012 (Qld) and the Council's disciplinary procedure.

In addition to the Commission accepting Mr Maher's workers' compensation application, it ordered the Council to pay the costs of the hearing.