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Witnesses & workplace investigations – a legal guide

Reading time: 10 mins

In workplace investigations, the testimonies of witnesses frequently serve as a key part of the investigation. Often, witness statements and interviews will have a significant impact on the outcome.

These firsthand accounts offer invaluable perspectives into the incident under scrutiny. They aid in establishing facts and determining subsequent actions. However, the process of gathering and evaluating witness testimonies is complicated.

Our employment lawyer will discuss the role and importance of witnesses in conducting a workplace investigation. We will also look at the influence of witness testimony on the outcomes of investigations in Australia. This article discusses how witness testimonies impact decision-making, legal proceedings, and actions taken by employers to prevent issues.

Importance and role of witnesses in workplace investigations

Witnesses play an important role in workplace investigations and fact-finding under Australian law. While witnesses are important, their accounts are just one piece of the puzzle. Investigators must review all evidence and ensure a fair and thorough investigation that follows Australian law.

The role of an investigator involves collecting evidence. Some workplace complaints are so serious that they warrant engaging an employment lawyer to carry out the workplace investigation. A key part of that evidence is likely to be in the form of witness statements.

Witnesses can describe the events under inquiry based on what they heard, saw, or experienced. Their testimony may contain important information and insights that aren’t present in other sources.

Witness testimony may support or contradict the complainant’s and respondent’s versions of events. This can be useful in establishing the case’s facts and evaluating the reliability of the relevant parties.

Is talking to witnesses when conducting workplace investigations discouraged?

Australian law does not discourage talking to witnesses when conducting workplace investigations. Often, it is a key part of the investigation process. Witnesses provide firsthand accounts of events under investigation. They provide valuable insights and details that cannot be found elsewhere.

Their testimonies can corroborate or contradict the accounts given by the complainant and the respondent. This can help determine the truth and decide who is trustworthy among the people involved.

However, individuals must follow certain guidelines and principles. Interviewing witnesses must be fair, respectful, and follow Australian law. Below are some guidelines for talking to witnesses during workplace investigations.

serious ethnic psychotherapist listening to clients complains

Guidelines for talking to witnesses when conducting workplace investigations

If there are witnesses, they should record their account of the incident as soon as possible in a witness statement. This is often done as part of the workplace investigation process.

Everyone involved in the investigation should give statements, not just those who agree with the accusations against the employee.

The witness statement should focus on facts, not opinion, and should set out:

  • the witness’s name;
  • their role in the business;
  • the date and time of the incident; and
  • in their own words, what occurred and what they saw and/or heard.

Here are some further guidelines for conducting witness interviews:

  • The witness has the right to review all relevant documents and information before the interview. Understand the context and formulate appropriate questions.
  • The confidentiality of witness testimony must be kept to encourage honesty and openness.
  • The witness must be informed of their right to have a support person present during the interview. This could be a colleague, a union representative, or a legal representative.
  • The purpose of the interview, the nature of the allegations, and the role of the witness in the investigation must be clearly explained to the witness. However, avoid sharing unnecessary details that could influence the witness’s testimony.
  • Use open-ended questions to encourage the witness to share their account in their own words. Leading questions that suggest a particular answer should be avoided.
  • The interview must be documented by taking detailed notes or, with the witness’s consent, record the interview. This ensures an accurate record of the witness’s testimony.
  • Treat the witness with respect and ensure the process is fair and unbiased. Avoid making judgments or assumptions.
  • Comply with all relevant laws and regulations, including privacy laws and anti-discrimination laws. If the allegations involve potential criminal conduct, be aware of the witness’s right to privilege against self-incrimination.
  • After the interview, provide the witness with an opportunity to review the notes or transcript and make any necessary corrections.
  • If new information comes to light, it may be necessary to conduct a follow-up interview. Always thank the witness for their time and cooperation.
  • the person investigating and conducting the interview must be objective and impartial as far as possible. For instance, that person must not be a witness to the events giving rise to the allegations under investigation. They should also refrain from involvement in making decisions regarding disciplinary action or outcomes.

The impact of witness testimonies

Witness testimonies can significantly impact decision-making procedures, legal proceedings, and preventative strategies in the workplace. While evaluating witness testimonies, one should consider them in the context of all available evidence. Further, the process of gathering and assessing these testimonies must be fair, respectful, and in compliance with Australian law.

Decision-Making Procedures

Decision-making procedures involve evaluating workplace investigation information to reach a conclusion.

When a witness tells what they saw, it gives a different view that can help employers understand what happened better. This is useful when the person who made the complaint and the person the complaint is against have different stories.

If a witness supports the complainant’s story, it can make the complainant’s version of events more believable. On the other hand, a witness may contradict the complainant’s account. If this happens, it may raise doubts about the accuracy or truthfulness of the complainant’s allegations.

The information gathered from witnesses can also provide important context that helps workplace investigators understand the dynamics at play. A witness can provide information about the workplace, power dynamics, or past events that are relevant to the case.

Based on the evidence gathered, including witness testimonies, investigators can make determinations about key aspects of the case. This means investigating if something wrong happened, identifying the responsible person, and determining appropriate consequences. These decisions can have significant implications for the parties involved and the workplace as a whole.

Farrah Motley is an Australian Qualified Lawyer and completed a Bachelor of Laws and Business from QUT

Legal proceedings and witnesses

Legal proceedings are formal actions in court or tribunal to resolve a dispute in a workplace investigation. If an investigation uncovers evidence of misconduct that warrants legal action, the case may proceed to court or a tribunal such as the Fair Work Commission.

Witness testimonies can be a critical part of the evidence presented in these proceedings. The court may call witnesses to give evidence under oath or affirmation, requiring them to formally promise to tell the truth. The parties involved in the dispute can use the evidence they provide to support or challenge the claims.

For example, if a witness testifies that they saw a colleague being harassed, this could support a workplace harassment claim. Conversely, if a witness testifies that they never saw any signs of harassment, this could challenge such a claim.

Section 590 of the Fair Work Act 2009 allows the Fair Work Commission to gather information in any manner it chooses. This includes taking evidence under oath or affirmation. This means that the Commission can consider witness testimonies as part of determining a case’s facts.

Lying under oath is a serious crime called perjury and can lead to criminal charges. Therefore, witnesses have a legal obligation to tell the truth when giving evidence in legal proceedings.

Possible preventative strategies taken by employers

Preventative strategies refer to measures taken by employers to prevent similar incidents from occurring in the future. Workplace investigations, including witness testimonies, often inform the development of these strategies.

Witness testimonies can provide valuable insights into the underlying issues that contributed to the incident. For example, witnesses may reveal patterns of behaviour, workplace dynamics, or environmental factors that were not initially apparent.

These insights can help identify issues in the system. For example, they can uncover a culture of harassment. They can also reveal gaps in policies, such as a lack of sufficient ways to report misconduct. Additionally, these insights can highlight training needs, such as employees not being aware of their workplace rights and responsibilities.

Once these issues are identified, the employer can take steps to address them. This might involve implementing new policies, revising existing ones, providing additional training, or making changes to the workplace environment. The goal is to prevent similar incidents from happening in the future.

Witness testimonies may reveal that bullying is a widespread issue in the workplace. In those circumstances, the employer might respond by implementing a new anti-bullying policy. This policy sets rules for bullying, explains the punishments for bullying, and creates a process for reporting bullying incidents.

The employer might also provide training about the new policy and how to handle bullying in the workplace.

Witness testimonies are important for creating safer and more respectful workplaces by helping to shape preventative strategies.

Key takeaways

  • Witness accounts are a key component of a workplace investigation
  • Witnesses can significantly influence decision-making procedures and legal proceedings
  • Witness interviews must be carried out in a fair, respectful, and legally compliant manner.
  • Workplace investigators need to understand the importance of confidentiality, the right to support, and the use of open-ended questions
  • witness testimonies can help identify systemic issues or policy gaps, leading to preventative strategies in the workplace

Case law examples involving witnesses in workplace investigations

A complainant made a sexual harassment complaint regarding a trainer’s conduct. She alleged he had stared at her breasts during a training session and sniggered at that time.

However, the investigation conducted was imperfect because it focused on the complainant’s subjective feelings of embarrassment. It ignored that the purpose of looking at the complainant’s chest was to establish a breathing rate. There was no evidence of any sniggering or other inappropriate subtext communications.

In this case, the employer said they conducted an investigation into allegations. However, the investigation did not interview any witnesses. The employer conducted the investigation after already deciding to terminate employment or force her resignation.

Accordingly, the court held that the employer did not provide the employee with procedural fairness. The employee’s dismissal was harsh, oppressive and unfair.

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