What employers need to know:
Procedural fairness and trauma‑informed practice are complementary approaches to investigations. By applying the three rules of procedural fairness, investigators create conditions for investigations that are both legally robust and psychologically safe. Employers should ensure investigators understand how trauma‑informed principles reinforce procedural fairness to deliver fair, transparent, and accurate outcomes.
In the modern landscape of workplace investigations, a tension is often perceived between two critical concepts: the legal necessity of procedural fairness, and the compassionate approach of trauma-informed practice.
Procedural fairness can be seen as rigid and rule-bound, whereas trauma informed practice is viewed as flexible and people-focused. This perceived tension in the context of a workplace investigation is misconceived. In truth, these two concepts are fundamentally linked.
In this article, we explore the fundamental principles of procedural fairness and how those principles support a trauma-informed approach to investigations.
The fundamental principles of procedural fairness
Procedural fairness is a non-negotiable legal requirement of any workplace investigation. There are many instances of flawed investigations leading to successful challenges to both the investigation and the management action taken in response, in Fair Work Commission and court claims.
The requirements of procedural fairness are ambulatory and are highly dependent on the facts of the case. As the High Court has said, and repeated many times, “the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case”: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152, at [26].
While there are clusters of cases giving rise to different applications of the rules of procedural fairness, they are often grouped into three basic rules:
| The Hearing Rule |
|---|
| The Hearing Rule requires that a person against whom an allegation is made (the respondent) must be given a fair and meaningful opportunity to be heard in relation to the case against them. In practice, this means that the respondent must be informed of: – The nature and purpose of the inquiry. – The case to be answered. – All critical issues on which the ultimate decision is likely to turn. The respondent must also be provided with all relevant, credible and significant evidence. The respondent must then be given a reasonable opportunity to provide their response, involving the presentation of their claims, arguments and evidence in favour of their case. |
| The Rule Against Bias |
| The Rule Against Bias requires that the investigator (and the ultimate decision-maker) must be, and must be seen to be, able to bring an open mind to the matter and be able to make a decision on the basis of the merits of the case. |
| The Evidence Rule |
| The ultimate findings must be based on logically probative evidence. That is, the findings of the investigation must be based on the facts and reasonable inferences drawn from those facts.Decisions cannot be based on speculation, conjecture or unsubstantiated assumptions. |
While the application of each of these rules to a workplace investigation ensure that the investigation is fair, when applied properly, they also support a trauma-informed approach to the investigation.
The trauma-informed approach
The fundamental principles of procedural fairness directly support a trauma-informed approach because they assist to create the psychological conditions for a fair investigation. They do this in the following ways:
| Trustworthiness / Transparency |
|---|
| Investigations by their nature are inherently stressful. Providing predictability and transparency about the investigation process can alleviate some of the stressors experienced by all participants in the investigation and in particular, the respondent. The Hearing Rule, when properly applied, assists to achieve predictability and transparency for the respondent by ensuring that the respondent is fully aware of the case against them. When a respondent is not provided adequate details of the allegations against them, they may feel aggrieved by the perceived unfairness. They can become anxious and confused, and speculate that the investigation process is pre-judged and fundamentally flawed. The longer such an investigation takes, the more likely it is that the employee will suffer harm. |
| Empowerment, Voice and Choice |
| The Hearing Rule can also serve as a tool for ensuring that all participants feel heard within the framework of the investigation. Fundamentally, it allows the respondent the opportunity to convey their side of the story. To implement this approach, an investigator should ensure all parties understand their role as an objective fact finder and adopt a questioning style that is polite, professional, neutral and that avoids scepticism. Ensuring that the respondent understands this communicates the message that the process will be fair and balanced. |
| Trustworthiness / Transparency |
| For an individual who has suffered trauma, particularly if as a result of the actions of someone in a position of power, trusting an authority figure like an investigator can be difficult. An investigator who takes seriously the Rule Against Bias and demonstrates genuine neutrality is far more likely to earn the trust of an investigation participant, particularly one who is affected by trauma. The investigator reinforces their objectivity by: – Listening respectfully to all investigation participants. – Asking clarifying questions to ensure understanding. – Avoiding traps associated with confirmation bias and fallacies of reasoning (such as myths associated with sexual assault victims). – Avoiding pre-judgement and implicit assumptions, particularly in terms of the manner in which the conversation with each investigation participant is conducted. |
| Trustworthiness / Transparency |
| The Evidence Rule assures all investigation participants that the disciplinary outcome is based on the merits of the issue, and not by reference to personal relationships, organisational politics or unsubstantiated claims. This can reinforce the integrity of the process for all participants: – For a complainant, this can be a profoundly validating and therapeutic aspect of the process, reinforcing that their experience was real and worthy of serious, impartial consideration. – For a witness, this can provide reassurance that allegations of workplace misconduct will be investigated thoroughly and fairly by their organisation and reinforce a sense of organisational justice. – For the respondent, this can provide reassurance that their evidence has been impartially assessed and that they are on notice of the basis upon which a decision maker has made their findings. |
Overcoming obstacles
Of course, from time to time, an investigator will encounter challenges in applying these rules. For example, how can an investigator provide specific allegations to a respondent (procedural fairness) if a complainant who suffers trauma is unable to remember precise details of the alleged incident?
Again, keeping in mind the principles of trauma-informed practice can assist overcoming those challenges to the extent possible. In the below example, the investigator might provide the details of the allegations with the level of detail the complainant is able to provide, while acknowledging where there are gaps. This supports trustworthiness and transparency. Consistent with this approach, the allegation might be framed as follows:
“It is alleged that in the week commencing Monday, 13 October, in the staff kitchen, you made a comment about the complainant’s appearance by reference to the length of their skirt that they experienced as humiliating. The complainant recalls feeling humiliated but cannot recall the exact words used.”
This is fair to the respondent because they know the time, place and nature of the allegation, in addition to the extent of the evidence supporting the allegation. It is also consistent with the complainant’s memory of the event. In this manner, the principles of trauma-informed practice reinforce the principles of procedural fairness, mitigating the health and safety risks associated with workplace investigations and ensuring a fair and safe outcome for all participants.
Action items for employers
We recommend that employers ensure that their investigators are not only aware of the principles of trauma informed practice, but are also familiar with the rules of procedural fairness and how trauma-informed principles reinforce those rules to ensure that investigations are fair and robust.
We can assist your organisation to conduct workplace investigations in a manner that minimises the risk of harm, in accordance with these rules and principles. We can also provide quality training for your human resources team and investigators.
In the next article, we explain the importance of interview technique in ensuring that an investigation is trauma-informed.