1. About Directive 01/24
1. About Directive 01/24
As of June 10, 2024, Directive 01/24 (Workplace investigations) took effect, replacing Directive 17/20 (Workplace Investigations).
Directive 01/24 (Workplace investigations) aims to establish clear procedures for investigating grievances or allegations related to public sector workers in their work performance or personal conduct. It applies to public sector workers in various government entities as defined in the Public Sector Act 2022 (Qld).
The updated Directive changes how workplace investigations are conducted within the Queensland public sector, establishing new standards for fairness, transparency, and respondent rights. Public sector employees facing grievances or allegations will find the following updates especially relevant.
Key Principles
Directive 01/24 provides clear procedures for workplace investigations, focusing on timeliness, fairness, and transparency. Investigations must be conducted efficiently, in proportion to the seriousness of the allegations, and subject to periodic reviews to ensure steady progress.
- Clear Terms of Reference: Every investigation requires well-defined terms to ensure transparency.
- Regular Reviews: Investigations are reviewed every six months, starting with an independent decision-maker, then progressing to the Chief Executive, and potentially involving the Public Sector Commission. It is important to note that these review rights do not apply to investigations involving corrupt conduct matters.
Management Enquiries vs. Formal Investigations
Directive 01/24 continues the distinction between management enquiries and formal workplace investigations, as initially set out in Directive 17/20. Management enquiries act as preliminary steps that help determine whether formal investigations are necessary.
- Management Enquiries: These are informal fact-finding processes that don’t involve formal interviews or terms of reference.
- Formal Investigations: Serious allegations that may lead to disciplinary action require a formal investigation, which involves gathering and evaluating evidence under the principles of procedural fairness.
2. Procedural fairness
2. Procedural fairness
Directive 01/24 places emphasis on procedural fairness, ensuring that public sector employees under investigation—referred to as “subject employees”—are treated fairly and without bias. Investigations should:
- Remain impartial and free from bias: Investigators must avoid any conflicts of interest.
- Communicate clearly and regularly: Employees should stay informed about the progress of the investigation.
- Maintain confidentiality: Confidentiality should be preserved as much as possible to protect the integrity of the process.
- Proceed quickly: Investigations must be completed in a timely manner, proportional to the complexity of the case. It is well known that undue delays can be a source of unfair workplace investigations.
Respondent Rights
Directive 01/24 further clarifies the rights of employees under investigation, granting them more participation in the process:
- Notification: Employees must receive detailed information about the allegations against them, which includes the evidence relevant to the allegations.
- Participation: Subject employees should be allowed sufficient time to prepare for interviews or respond to written allegations.
- Support and Representation: Employees can have a support person or union representative present during interviews. Legal representation may also be involved (contact Anderson Legal).
- Right to Request a Review: Employees can request a review of the investigation process if they believe it has not adhered to Directive 01/24. It is important to note that this review right does not apply to investigations involving corrupt conduct matters.
Cultural safety and considerations
Directive 01/24 places a strong focus on cultural safety, especially for Aboriginal and Torres Strait Islander employees. Investigators must:
- Ensure cultural competence: Investigators need the appropriate cultural knowledge to conduct investigations involving Indigenous employees.
- Identify and mitigate bias: Investigators must document any potential bias and take steps to mitigate its impact on the investigation.
3. Investigation process
3. Investigation process
The legal framework
For a workplace investigation within the Queensland public sector, investigators must take into account all relevant laws, directives, and guidelines. This will include:
- Public Sector Act 2022 (Qld)
- Public Sector Ethics Act 1994 (Qld)
- Human Rights Act 2019 (Qld)
- Directive 01/24: Workplace Investigations
The role of the investigator
Formal workplace investigations for the Queensland public sector will often involve the following six steps:
- Understanding the scope
- Planning the investigation
- Gathering evidence
- Allowing an opportunity to respond
- Considering the evidence
- Delivering findings and recommendations
1. Understanding the scope
For an investigation to commence, the chief executive (or their delegate) must authorise terms of reference that clearly sets out the terms and scope of the investigation. This would ordinarily include:
- Clear instructions for the investigator
- The scope of the investigation
- Timeframes and milestones to be met
- Reporting requirements
While a respondent may not receive the endorsed terms of reference, it begins the process and therefore starts what should be “regular and transparent communication” throughout the investigation.
2. Planning the investigation
Workplace investigations may be straightforward or complex. Sometimes, it may be mandatory under the law to forward the complaint or grievance to the police or other government agency.
In planning a workplace investigation, an investigator may need to prepare a ‘workplace investigation plan’ that tracks progress. This may include considering the types of evidence and witnesses that may be available and how that evidence will be secured. A plan may also involve timelines for the work to be completed, which can assist in setting expectations for those affected by the investigation.
3. Gathering evidence
There are a number of practical issues that must be considered when obtaining evidence as part of any investigation:
- Ensuring information is lawfully obtained
- Complying with any relevant workplace policies and procedures
- Prioritising evidence that may be lost or destroyed (such as CCTV footage, etc)
- Gathering evidence in a way that promotes its integrity (such as through no-leading questions, etc)
- Considering whether there is other evidence that may assist in the assessment of credibility and reliability
- Understanding confidentiality requirements and expectations
Given the potential for conflict to emerge in a workplace while allegations are being considered, ensuring confidentiality and witness protocols are outlined can minimise unnecessary concerns. Given some allegations will be protected under the Public Interest Disclosure Act 2010 (Qld), it is extremely important to adhere to obligations related to that law.
4. Allowing an opportunity to respond
Clause 10.5 of Directive 01/24 requires that the respondent to an allegation “be given reasonable opportunity to participate in the investigation”:
“This includes being advised of the allegations against them, the opportunity to seekindustrial advice and representation and being afforded reasonable opportunity to provide information about the allegations.”
Failure to provide a reasonable opportunity to respond may cause an investigation to be halted, its findings quashed, or decisions that follow from it overturned.
5. Considering the evidence
The investigator will make findings based on the information or evidence obtained through the investigation. Although a workplace investigation is not necessarily bound by the rules of evidence, if there is a dispute about the findings or any process that may follow, a court or tribunal will likely give consideration to relevant evidentiary principles.
It is not uncommon for inconsistencies to arise between witnesses. The standard of proof to be applied to findings in a workplace investigation is the balance of probabilities. It was explained in the High Court case of Briginshaw v Briginshaw (1938) 60 CLR 336 at page 362 that when the law the proof of any fact, it requires “an actual persuasion of its occurrence or existence… It cannot be found as a result of a mere mechanical comparison of probabilities”. The judgment goes on to explain what may reasonably satisfy a decision-maker on the balance of probabilities:
“… reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer… In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
As such, in making findings in relation to a grievance or complaint, the following ought to be taken into account:
- The nature of the allegation (ie, seriousness or triviality);
- The inherent likelihood or unlikelihood of the allegation; and,
- The consequences that follow from the finding of fact.
It may be found that the allegation is proved (substantiated) or not proved (unsubstantiated). In some circumstances, an allegation may be partly proved. It is important to clarify what has been accepted or rejected, as it may affect any disciplinary process that may follow (see Directive 05/23 (Discipline)).
6. Delivering findings and recommendations
Generally, formal workplace investigations will result in a report outlining the allegations, evidence gathered, responses provided by the respondent, and the factual findings. In some cases, investigators may also be asked to make recommendations for what steps should take regarding the issues raised.
Directive 01/24 makes clear that the findings of a workplace investigation (a) are not binding on the chief executive (or their delegate); and, (b) are not evidence that can be relied upon by the chief executive. The chief executive may only rely on the evidence that has informed the findings.
In practice, it is common to see the chief executive (or their delegate) make decisions consistent with the findings of an investigation report, highlighting the importance of properly responding to allegations during the investigation. This is particularly so for investigations involving allegations of potential corrupt conduct.
Clause 5.5 of Directive 01/24 makes clear that a workplace investigation “is not a disciplinary step”. However, allegations found credible and reliable may result in a disciplinary process, which operates according to Directive 05/23 (Discipline).
4. How a lawyer can help you
4. How a lawyer can help you
Work can be one of our defining characteristics, or at least play an important part in how we perceive ourselves. It is important not to underestimate the impact a workplace investigation can have on a person. This firm helps to defend public sector workers who face allegations and disciplinary processes in Queensland.
Facing a workplace investigation is a serious matter that can have significant consequences on your employment and professional reputation. While it may be tempting to handle the response independently, hiring a lawyer to assist you in responding may be a prudent decision for several reasons.
1. Legal expertise and knowledge
A lawyer brings extensive knowledge of employment law and the legal frameworks governing workplace disputes, including workplace investigations. This expertise can help you understand your rights and your employer’s obligations, ensuring that your response is both legally sound and strategically effective.
2. Tailored and strategic responses
Lawyers are skilled in crafting tailored responses to workplace investigations. They can highlight procedural flaws, present mitigating factors, and provide evidence that supports your case. Their ability to provide strategic legal advice can significantly enhance the soundness of your decisions, potentially preventing any missteps.
3. Navigating complex issues
The legal implications of a workplace investigation can be complex. A lawyer can help you navigate this terrain, advising on the strengths and weaknesses of different courses of action. Additionally, a lawyer can help in identifying risks in certain options, which may not be obvious to an employee who has never faced a complaint or investigation.
4. Profesional communication
Facing a workplace investigation is inherently stressful. The potential threat to your livelihood from any disciplinary action that may result can be a source of real worry. A lawyer can alleviate some of this stress by assisting you in communicating your case, advising you on exercising your rights, and providing a clear path forward. They ensure that your response to an investigator is professional, respectful, and focused on meeting the allegations.