Delegates Handbook

When the member has
been asked to respond to an
allegation in writing…
• Remind the member they have a right to be heard
and put their case.
• If the allegation relates to something that occurred a
long time ago they can question why the matter has
not been brought to their attention sooner.
• Sufficient notice should be given to allow the
member to respond to the allegation before any kind
of hearing or interview. If not, ask for more time.
• The member should be given sufficient information
and detail about the allegation to enable an adequate
response. The employee should know what rule
has been broken, conduct is inappropriate and the
possible consequences of their alleged action. Ask for
more detail if needed.
• Check for unsubstantiated allegations and request
these be removed.
• Look out for bias: identify anything in the allegation
that indicates a view has already been formed.
• Check that the investigator and decision maker are
independent.
• Respond to the matters that have been specifically
raised: don’t guess.
• If the allegations are factually correct explain the
circumstances or identify where they are not factually
correct.
• The written report should be concise, clear, truthful,
tell the member’s, side of the story, concentrate on
what the member has experienced and seen and
done themselves, rather than hearsay.
• Advise the member not to vent feelings, make
assumptions, disparage others.
• Remind the member about the importance of
including relevant documentation and time lines.
• Advise the member that delegates and PSA staff
can advise members on how they can respond to
allegations, however they are not able to write the
member’s response for them (although they can
suggest improvements if sufficient time is given).
What does procedural
fairness mean in regard to
investigations?
Procedural fairness requires an investigator to:
• Inform members under investigation of the substance
of any allegations against them
• Provide members with a reasonable opportunity to
put their case
• Hear all parties and consider all submissions
• Make reasonable inquiries before making a decision
• Ensure that no person decides a case in which they
have a direct interest
• Act fairly and without bias
• Conduct the investigation without undue delay
Examples of investigations where the NSW Industrial
Relations Commission found breaches of procedural
fairness include:
• A decision-maker having a pre-determined view of
the outcome of the investigation
• A decision maker taking irrelevant matters into
consideration in making a decision
• An investigator having been involved in one of the
alleged incidents
• An investigator had previous disagreements with the
employee under investigation
• Witnesses not being interviewed
• Unreasonable delays in the process (what is
reasonable will depend on the circumstances)
• An employee under investigation not being given
details of the allegations against them
Before the investigative
interview…
• Ensure that the agenda for the meeting has been
provided in the required time frame and complies
with legislation and policy.
• Check in advance that the member is prepared and
clear about the process, what they can expect, and
the case they are putting, and has documentation
to hand. Be clear on what the member is hoping to
achieve and encourage realistic expectations.
• Arrive early. Advise the member to answer only the
questions asked, remain respectful, and think before
speaking.
42 | Delegates Handbook