A well-drafted statement of allegations is critical in a workplace investigation. Firstly, it clearly defines the scope (and limit) of the investigation, as the investigator will make findings about only those alleged events which have been set out in writing.
More importantly, it is essential in providing natural justice to the person responding to the allegations, in providing them with a clear account of what they are alleged to have done and providing an opportunity to respond. This will not occur if the allegations are too vague (Bann v Sunshine Coast Newspaper Company Pty Ltd [2003] AIRC 915), confusing or lacking necessary details.
The risk of flawed allegations
If flawed allegations become the basis for termination of employment following an investigation, the employer leaves themselves open to a challenge of unfair dismissal under the Fair Work Act.
It is therefore critical that the allegations that are put to a respondent as part of a workplace investigation are fit for purpose.
While a complaint can be verbal or in writing, let’s assume a scenario in which an employee raises a complaint in writing to HR, consisting of an 8-page email, with little punctuation but lots of emotion, broad sweeping statements and many assumptions, alleged impact regarding physical and mental health, and ending with a demand that the respondent be sacked.
Creating ‘fit for purpose’ statement of allegations
If the employer decides to formally investigate, it is clear that attaching a copy of the email to a cover letter to the respondent, announcing the investigation and requesting a response, is not ‘fit for purpose’. But what does fit for purpose look like?
A statement of allegations is a separate document to the complaint, providing a clear, concise and accurate account of what is being alleged and, if necessary, an explanation as to why the alleged behaviour is considered to have breached the employer’s policies. It should not include dramatic or emotional language, general or personal criticisms, or alleged impact on the complainant.
How do you turn a ‘complaint’ into a Statement of allegations? If the complaint has been made verbally, it may not exist at all yet in writing form, or only in note form. What may be required is a more formal interview with the complainant, in order to take down the necessary detail of the allegations.
Where a written complaint exists (as in our 8-page email) the first task is to reduce the written document to what is being factually alleged, removing anything else. This means, for each individual alleged event, making sure that the allegation includes:
- what happened,
- where it happened,
- when it happened,
- how the action took place (e.g. ‘spoke in a raised voice’),
- how many times it happened (if more than once), and
- who did the action (or who failed to act).
While there are other ways to set them out, a useful way is to list allegations in numbered, chronological order.
Collecting the necessary details
It is quite common for an initial written complaint to lack these necessary details, and it will often be necessary for to interview the complainant to elicit further details in order to ‘fill the gaps’ in the statement of allegations.
If the complainant cannot clearly or accurately recall the exact date of the allegation, record whatever details they can recall. For example, “on a day during the week of July 23rd” or “on a day between the last week of May and the end of June”.
A written complaint will often contain the words “always”, “all the time”, or “occasionally”, “frequently”. Such statements are however not procedurally fair and, again, the complainant needs to provide more specificity or the allegation risks being too vague, e.g. “At least three times a week during the months of June and July”.
If the complainant is not sure of the exact words that were used in relation to an allegation, the phrase ‘words to the effect of’ can be useful.
Where disciplinary action may result from the findings of the investigation, when putting the allegations to the respondent it is necessary to advise;
- which workplace policies or laws are alleged to have been breached;
- the potential disciplinary consequences if the factual allegations are found to be proven.
Who should draft the allegations?
Finally, who should undertake the task of translating the complaint into a statement of allegations?
It could be an HR professional, a support person, or a Union representative. It could also be the investigator as long as the investigator maintains a clear demarcation in their role and avoids advising or advocating for the complainant during the process.
Improve your allegation drafting skills!
To hone your skills in this critical area and learn more about the fine art of drafting allegations, register now for our Online Drafting Allegations Masterclass on 3 July. Participants will be coached through several complaint scenarios based on de-identified real cases and become proficient at drafting allegations to set up investigations designed to provide clear and robust findings of fact by Workogic Director Jodie Fox.
About Tom Henry
Tom is highly experienced in undertaking large and complex workplace investigations and reviews, including managing client and stakeholder expectations in matters requiring particular sensitivity, confidentiality and care.
He has led a large number of challenging, highly technical workplace investigations and workplace reviews. He has significant experience across the corporate and public sectors, including industrial, mining, construction, energy and communications, through to the health and tertiary education sectors.
