Artboard 1Icon/UI/CalendarIcons/Ionic/Social/social-pinterestIcon/UI/Video-outline

Victorian Government Bulletin

25 October 2021

#Government, #Workplace Relations & Safety

Published by:

Sladjana Skoric

Victorian Government Bulletin

Court of Appeal finds ‘heavily redacted’ investigation report denied employee procedural fairness

The Victorian Court of Appeal (Court) recently held that the State of Victoria (by its department, the State Revenue Office) (SRO)’s “heavy” redaction of an investigation report into harassment claims against an employee, Mr Tobias Tucker, denied Mr Tucker “procedural fairness” and fell short of the SRO’s obligations.

Mr Tucker sought a declaration alleging that the SRO failed to comply with the procedural fairness obligations in the context of the investigation. The Court upheld Mr Tucker’s complaints about the unfairness of the harassment investigation due to the inequality of the information available to the parties:

“Harassment in the workplace is a serious matter and it is likely that many employers may be reluctant to employ someone who has been found to have engaged in such conduct. That reluctance may be ameliorated by a declaration by this Court that the findings of harassment against the applicant resulted from an unfair investigative process.”

The Court concluded that Mr Tucker was entitled to the relief he sought on the basis that the SRO had failed to conduct the harassment investigation in accordance with its obligations.

Background

Mr Tucker was employed by the State of Victoria, and commenced working at the SRO in 2011 as a legal officer in the customer service and debt management branch and was promoted to senior solicitor in October 2013. Mr Tucker’s employment was governed by a contract and a document entitled “Acceptance of Employment Terms” which required Mr Tucker to comply with the SRO’s workplace policies and procedures as well as its lawful directions.

The Victorian Public Service Agreement 2016 (VPSEA) also applied to Mr Tucker’s employment. The VPSEA contained clauses dealing with termination of employment and the SRO’s investigation processes into misconduct and disciplinary procedures. Clause 21 of the VPSEA set out the obligations of SRO pertaining to investigative processes, the provision of information to employees and allowing employees to respond to allegations, including a specific requirement that such processes be conducted in accordance with the requirements of “procedural fairness”.

In 2017, Mr Tucker was subjected to two workplace investigations concerning allegations of harassment and improper searches of customer records. After these allegations were found to be largely substantiated, the SRO proposed to give him a warning concerning the harassment allegations and to terminate his employment in respect of the improper searches of customer records.

Obligation to provide “procedural fairness”

Mr Tucker argued that the SRO failed to afford him procedural fairness by failing to comply with the information provision requirements in clause 21 of the VPSEA during both investigations.

The Court found that Mr Tucker failed to establish that SRO had breached any provision of the VPSEA or that he had been denied procedural fairness concerning the investigation into the improper searches of customer records.

However, in the context of the harassment investigation, Mr Tucker was able to show that the SRO had breached its obligation under clause 21 by failing to provide him with a proper opportunity to respond to the allegations. This failure was on account of the SRO heavily redacting the external report upon which the harassment allegations were based, which meant that he did not have the relevant information to properly respond before any disciplinary action against him was taken.

Given the nature of the redactions in the investigation report, Mr Tucker was unable to determine the evidentiary basis for the finding. This prevented him from providing any meaningful response to the findings or why the proposed disciplinary action was not warranted on that basis. This meant that Mr Tucker and the SRO were not placed on “equal footing – in terms of the information available to them – to make an assessment as to whether the findings had a sound foundation”, constituting a denial of procedural fairness.

The Court held that the SRO’s denial of procedural fairness to Mr Tucker meant that the findings of the harassment investigation were unfair, which entitled Mr Tucker to “feel vindicated”, stating that “such vindication would be enhanced by the making of a formal court order in his favour”.

Key lesson

This case highlights the importance for employers when conducting workplace investigations to ensure that the process complies with the applicable investigation and disciplinary procedures. These obligations are typically derived from workplace policies and procedures and industrial instruments.

Failure to comply with these obligations means that a flawed investigation and disciplinary process can undermine a disciplinary outcome even if that outcome is based on proven allegations, and the decision to discipline the employee would otherwise be justified.

A copy of the decision can be accessed here.

Authors: Sladjana Skoric & Louise Rumble

In the media

PS information popular with the public
Victorian Information Commissioner, Sven Bluemmel joined the Acting Commonwealth Ombudsman and Commissioners from NSW, Queensland and Western Australia to release the findings of their Information Access Study 2021 and sign a joint statement (07 October 2021).  More...

COVID-19 tracing data must be protected by law nationally
Federal legislation is urgently needed to ensure COVID-19 tracing data is used only for health purposes in every state and territory, says the Australian Lawyers Alliance as the Greens plan to introduce a bill to Parliament that will ban law enforcement agencies from accessing this data (07 October 2021).  More...

Big Tech warns of Australian online safety reforms’ cybersecurity risks
The federal government’s online safety reforms will lead to “widespread cybersecurity risks” comparable to the infamous Ashley Maddison data leak and may see “the work of one arm of government undoing the work of another”, according to a number of leading global tech firms (07 October 2021).  More...

Lifting the veil of secrecy: Court rules parts of Collaery case to be heard in public
The ACT Court of Appeal has ruled that parts of the ongoing prosecution of Bernard Collaery should be open to the public (06 October 2021).  More...

IBAC to hold public hearings into allegations of serious corrupt conduct involving Victorian Members of Parliament
Public hearings into allegations of serious corrupt conduct involving Victorian public officers, including Members of Parliament, will commence on 11 October. The hearings are part of Operation Watts, which is looking into a range of matters including allegations of 'branch stacking (30 September 2021).  More...

Audit launched into Services Australia’s reliance on contractors
The national audit office has turned its attention to the prevalence of contractors at Services Australia, following concerns the agency has a “serious problem” with tech capability due to its over-reliance on outsourced work. The ANAO has also launched an audit into the Department of Defence’s use of contractors with the same terms of reference (30 September 2021).  More...

ACMA releases 2021–22 research program
The ACMA has released its 2021–22 research program, which will examine a range of topics across the Australian media and communications landscape, including unsolicited communications – phone calls, SMS and email and an examination into the use of affiliate marketing in online gambling (28 September 2021).  More...

Victoria launches home quarantine trial using facial recognition tech
The Victorian government has launched a trial of home quarantine for returning residents using facial recognition and geolocation technology, the latest in a number of states to embark on similar pilots (28 September 2021).  More...

Freedom of Information changes go too far
On the International Day for Universal Access to Information, the Law Council of Australia has expressed concern the COAG Legislation Amendment Bill 2021 extends Freedom of Information exemptions too broadly and without adequate justification (28 September 2021).  More...

International Access to Information Day 2021
The Office of the Australian Information Commissioner is calling for an open-by-design approach to managing government-held information as it marks International Access to Information Day on 28 September (27 September 2021).  More...

OAIC publishes annual report on digital health
The independent privacy regulator for the My Health Record system and Healthcare Identifiers Service has detailed its compliance and monitoring activity in its 2020–21 digital health annual report. The annual report highlights the OAIC’s work to ensure privacy measures for Australia’s digital health systems are upheld (21 October 2021).  More...

Victoria's privacy commission orders release of secret COVID lockdown briefings
The health department is ordered to release the details of confidential lockdown briefings in a ruling from the Office of the Victorian Information Commissioner (20 October 2021).  More...

Australians on board with vaccine passport
Senator Reynolds said Services Australia’s Visible Digital Seal technology within the new document was world-leading, as secure as an Australian passport and was authenticated in the same way. The Minister said the international certificate met the new global standard specified by the International Civil Aviation Organization and conformed with World Health Organization guidance (18 October 2021).  More...

New Office to investigate police in Victoria
The Office of the Special Investigator was formally established this week with powers to examine the potential criminal conduct and disciplinary matters raised by the Royal Commission into the Management of Police Informants (14 October 2021).  More...

Gambling watchdog probe urges ban on high-roller junkets, but critics say 'they've missed the point'
An independent probe into Victoria's under-fire gambling watchdog could not substantiate allegations that Crown exercised undue influence on inspectors, but recommends parliament ban junkets for overseas high rollers (13 October 2021).  More...

In practice and courts

Review of PBR Act and IPEA Act
The statutory review will consider how the current legislative framework provides appropriate levels of accountability and transparency to the use of taxpayers’ money. The Review will report by 31 December 2021.  More...

Law Council Update
The Law Council produces a fortnightly newsletter which highlights the Law Council's important activities and advocacy, along with any relevant media and events stakeholders would be interested in.
1 October 2021
15 October 2021

AAT Bulletin
The AAT Bulletin is a weekly publication containing a list of recent AAT decisions and information relating to appeals against AAT decisions
Issue No. 20/2021, 4 October 2021
Issue No. 21/2021, 18 October 2021

Draft legislation for Australian Government Digital Identity System

The proposed legislation will enshrine in law, privacy and consumer safeguards for greater trust in the System as it expands. This includes more services and sectors, accelerating an economy-wide rollout. Submissions are open until 27 October 2021. Visit digitalidentity.gov.au/have-your-say for more information.

AAT: In-person hearings in our Canberra, Melbourne and Sydney registries
Until further notice, in-person hearings in our Canberra, Melbourne and Sydney registries will only proceed when all parties, representatives and other participants are willing to show evidence that they have been fully vaccinated (18 October 2021).  More...

Consultation on review of the Workplace Gender Equality Act 2012
The Workplace Gender Equality Agency has invited feedback on a review of the law covering workplace gender equality in Australia, on an issued a consultation paper which covers the current legislation, enshrined in the Workplace Gender Equality Act 2012, as well as gender indicators and continuing employer reporting obligations. Submissions close on 24 November and further information can be accessed on the PM&C website at this PS News link.

Victoria

Changes to Supreme Court of Victoria file searches and affidavits
The Supreme Court of Victoria has new rules relating to court file searches and affidavits, which will come into effect on 1 October 2021, evidentiary documents filed in a proceeding, including affidavits, exhibits to affidavits, witness statements, expert reports, written submissions, outlines of argument and chronologies, may not be inspected by any non-party until the document has been read or relied on in open court or for an application determined without a hearing.
Practice Note SC Gen 20 Inspection of Civil Court Files by Non-Parties and Notice to the Profession (Changes to File Inspections and Affidavits) have been published on the Court’s website, providing further details of the changes and how they apply in the Common Law Division and Commercial Court. Further information on these changes can be found in the Supreme Court news story.

Supreme Court of Australia Library Judgments Bulletin
The Law Library of Victoria produces a fortnightly bulletin that summarises the latest legislation and cases for the Victorian jurisdiction, as well as High Court of Australia cases. Download the most recent Library Bulletin:
Law Library Bulletin No 19 (8 October 2021)
Law Library Bulletin No 20 (fortnight ending 22 October 2021)

Victoria Legal Aid: Shaping a fairer, more effective criminal justice system
We’ve shared our key focusses for reform with the inquiry into Victoria’s criminal justice system. The focus of our submission is on four key areas that reflect a person’s journey into and through the criminal justice system (22 October 2021).  More...

Consultations

Inquiry into Whether Victoria Should Participate in a National Electoral Roll Platform – have your say
The Electoral Matters Committee is accepting submissions to its Inquiry into whether Victoria should participate in a national electoral roll program. Submissions close on 22 October 2021.  More...

Inquiry into Commonwealth support for Victoria – have your say
The Legislative Assembly Economy and Infrastructure Committee is accepting submissions to its Inquiry into Commonwealth support for Victoria. Submissions close on 29 October 2021.  More...

Legal Aid Brief eNewsletter
Legal Aid Brief is Victoria Legal Aid's ​fortnightly eNewsletter that keeps you up to date with legal aid matters.  More...

Commonwealth and Victorian Courts' COVID updates – 22 October 2021
For up-to-date information about the Courts’ responses, please visit their websites:
Supreme Court of Victoria – see here. County Court of Victoria – see here. Magistrates’ Court of Victoria – see here.
This week saw the establishment of a referral scheme for pro bono assistance to help unrepresented litigants involved in family law proceedings. It is a joint initiative of the Federal Circuit and Family Court of Australia and the Victorian Bar. More information is available on the Courts' website here (15 October 2021).

Published – articles, papers, reports

Annual Report 2020–21
VAGO: 5 October 2021
This report covers the activities of VAGO for the period 1 July 2020 to 30 June 2021. It is prepared in accordance with the Audit Act 1994 and the Financial Management Act 1994, and complies with the requirements of relevant Australian Accounting Standards and Interpretations, Standing Directions and Financial Reporting Directions.  More...

2020–21 digital health annual report
Australian Information Commissioner: Released 21 October 2021
The OAIC received and finalised seven complaints in relation to the My Health Records system, and received and finalised one complaint relating to the Healthcare Identifier Service. The OAIC was notified of two data breaches involving the My Health Record system.  More....

Cases

Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320
PUBLIC HEALTH ACT – COVID-19 – public health orders made under s 7(2) of the Public Health Act – orders designate certain areas of concern and restrict movement out of the home and out of the area –authorised workers able to leave area of concern but only if vaccinated – orders allow residents of area of concern to enter and remain on construction sites but only if vaccinated. ADMINISTRATIVE LAW – proof of basis upon which Minister for Health acted – Minister did not give evidence – part of documents relied on subject of public interest immunity claim as documents produced to sub-committee of cabinet - whether Jones v Dunkel inference or Blatch v Archer reasoning available against Minister and State – position of Ministers with competing responsibilities – no adverse inference available – Blatch v Archer reasoning not available ADMINISTRATIVE LAW – grounds of challenge – relevant considerations – how derived and how framed – procedural fairness – no obligation to afford procedural fairness in making public health orders affecting a vast number of persons – not proven that making of orders was not a genuine exercise of the Minister’s power – unreasonableness – adducing of evidence to undermine factual basis for making of orders – decision to make orders informed by policy considerations – whether differential treatment of unvaccinated persons consistent with objects of Public Health Act – all grounds of review rejected. CONSITUTIONAL LAW – whether orders and section 7 of the Public Health Act rendered invalid by s 51(xxiiiA) of the Constitution – orders do not create any form of civil conscription in the provision of medical and dental services – s 51(xxiiiA) does not limit legislative power of the States – no joint scheme with Commonwealth to effect civil conscription – neither orders or Public Health Act dependent for its operation on any joint scheme with Commonwealth – argument untenable – no inconsistency between orders, Public Health Act and Australian Immunisation Register Act 2015.

Legislation

Victoria

Victorian legislation can be accessed here.

Disclaimer
The information contained in this document has been compiled and supplied by LegalBiz. The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources.

Published by:

Sladjana Skoric

Share this