The Court of Appeal has confirmed that, when conducting an investigation, employers are expected to be fair and reasonable, but, the investigation should not be subject to minute and pedantic scrutiny for the purpose of identifying failings.
The recent case involved a disciplinary investigation into allegations an airline pilot had sexually harassed a novice flight attendant. The employer investigated the claims and eventually dismissed the pilot.
The Employment Court had originally been highly critical of the employer’s investigation. It found that the investigator had not been ‘even-handed’ with his questioning and the same level of scrutiny with which the dismissed employee’s account of events had been tested had not been applied to the complainant or other witnesses. The investigator had also conducted some interviews in person and some over the phone, and only some were recorded or transcribed. The Employment Court said that all witnesses should be questioned in the same way and to the same level of detail. It was held that the investigation was a breach of natural justice meaning the dismissal was not justified.
On appeal, the Court of Appeal said that a disciplinary investigation did not require the questioning of each witness to be the same or to the same level of detail. Although an investigation must be even-handed, the same level of rigour towards each witness was not required.
Importantly, the Court emphasised the importance of assessing what was fair and reasonable in all the circumstances of the case. There even may be circumstances in which a more thorough and rigorous investigation would be required.
The decision will be a relief to employers who are not expected to conduct an investigation to the standard required of a judicial inquiry. Employers are still required to undertake thorough and balanced investigations into an issue that arises, but there may be circumstances where it is justifiable to use different approaches to interview individuals