Chief Justice of The Australian Capital Territory Supreme Court, Lucy McCallum, set out important principles concerning fairness and interference with the Court’s capacity to ensure a fair trial to the accused, in a decision dated 21 June 2022. The case related to the allegations of rape against Mr Bruce Lehrmann ([2022] ACTSC 145) by Brittney Higgins.

The notion of innocent until proven guilty is a fundamental basis of Australian law.

Applying this in the Workplace

When dealing with allegations in the workplace, including allegations of sexual harassment, employers need to ensure fairness to all parties.

Once an allegation is made, the respondent has the right to know the allegation in sufficient detail to be able to properly respond. The respondent needs to be given the right to be heard and for their response to be given proper consideration.

The investigator is required to conduct themselves in a manner that is free from bias, and their findings must be evidence based.

The importance of confidentiality

Chief Justice McCallum’s decision highlights the importance of confidentiality. And the impact ill-considered public comments can have on preventing a person from a receiving a fair and unbiased investigation/appeal/trial. Inappropriate discussion or gossip relating to a matter under investigation; may result in witness collusion and irreversible perceptions of guilt within the workforce.

A challenging process

It’s likely that organisations do not have the internal skills available, or the capacity to remain unbiased (or at least defend perceptions of bias). In these cases, it may be necessary to engage an independent investigation.

Organisational training and employee support systems similarly need to protect the rights of all parties. Managers and supervisors must be aware of potential impact inappropriate behaviour may have on the organisation and its staff.

It’s important to remember that the role of a Contact Officer is to support aggrieved employees and explain the processes and options to them, not to form judgements about guilt or innocence.

It is often possible to take positive steps to minimise business risk by preventing inappropriate behaviour in relation to unsubstantiated concerns/allegations prior to any investigation process.

Proactive interventions may include:

• reminding all staff of their obligations to model organisational values and behaviours;
• targeted training;
• and mediation.

To find out more about iHR Australia’s investigation services and training visit https://ihraustralia.com/workplace-investigations/ or call us for a confidential discussion on 1300 221 469.

About the Author

John Boardman is iHR Australia’s Director of Workplace Relations and has an extensive background in human resource management and industrial relations. John is a competent ‘hands-on’ technician and has researched, prepared and conducted complex cases before both State and Federal tribunals. John has also provided advice to employers throughout major industrial relations disputes.

He has extensive experience in conducting independent workplace investigations into allegations of bullying and harassment, and has conducted major investigations across a broad range of industries. John also possesses significant experience in mediation and dispute resolution.

John co-facilitates iHR Australia’s Workplace Investigation Officer Training around Australia.