Workplace investigations (Directive 01/24)

1. Purpose

1. This directive:
   1. outlines the procedures to investigate a grievance or allegation relating to the work performance or personal conduct of a public sector employee
   2. outlines how procedural fairness requirements may be met in relation to a workplace investigation
   3. provides for periodic reviews of a workplace investigation, including the period within which reviews must be conducted, to ensure timely finalisation of the investigation.

2. Commencement

2. This directive commences on 10 June 2024.
3. Commission Chief Executive (CCE) Directive 17/20: Workplace investigations is repealed and superseded by this directive.

3. Authorising provisions

3. Sections 100 and 222 of the Public Sector Act 2022 (the Act).

4. Application

4. This directive applies to:
   1. public sector employees as provided for in section 12 of the Act
   2. public sector entities as provided for in section 8 of the Act
   3. chief executives of public sector entities as provided for in sections 16 and 17 of the Act.
5. This directive does not replace, modify, or revoke any legislative requirements that apply to the management of particular types of complaints. For example, corrupt conduct under the Crime and Corruption Act 2001, public interest disclosures under the Public Interest Disclosure Act 2010, or complaints under the Human Rights Act 2019 (HR Act).
6. Section 229 of the Act outlines the relationship between a directive and industrial instrument including how to deal with inconsistencies.

5. Principles

5. Chief executives are responsible for making decisions under the provisions of chapter 3, part 8, division 3 (Disciplinary action) of the Act.
6. Chief executives are required to act in a way that is compatible with the main purpose of the Act and must:
   1. treat public sector employees fairly and reasonably
   2. take measures to promote the effectiveness and efficiency of public sector entities
   3. provide public sector employees with access to fair and independent reviews and appeals
   4. maintain accountability, impartiality and integrity while supporting the public interest.
7. In most cases, timely management action or using positive performance management strategies will be appropriate and may negate the need for a more formal process, including a workplace investigation. Less formal management enquiries by an entity may be sufficient to determine:
   1. the relevant facts
   2. if a complaint or an allegation is likely to be substantiated or unsubstantiated
   3. the appropriate action, including if a workplace investigation process should commence.
8. Where a workplace investigation is warranted, it is critical that the investigation be well managed by the entity and the chief executive. Investigations must be conducted in an appropriate, fair, resource-effective, and timely way that is proportionate to the seriousness of the grievance or allegation.
9. A management enquiry or workplace investigation, whether internal or external, is not a disciplinary step. It is a separate process to any formal disciplinary process provided for under chapter 3, part 8, division 3 (Disciplinary action) of the Act.
10. Workplace investigations must:
    1. be conducted fairly
    2. be free from conflict of interest or bias, both conscious and unconscious
    3. be conducted by an investigator who is not involved in approving the terms of reference for the investigation or making any decisions based on the investigation report
    4. have a clear terms of reference that ensures the transparency of the process
    5. be conducted in line with the principles of procedural fairness
    6. make allowance for the involvement of support persons and/or industrial representatives
    7. be conducted in a way that ensures confidentiality is maintained as far as possible and to the extent it is essential for a fair investigation
    8. be conducted ethically and lawfully
    9. be conducted in a timely way that is proportionate to the allegations or concerns
    10. involve regular and transparent communication
    11. be conducted by an employee of the public sector wherever possible. External investigators are only to be used as provided for under this directive.
11. Under the HR Act decision makers must:
    1. act and make decisions in a way that is compatible with human rights, and
    2. give proper consideration to human rights when making a decision under the Act and Public Sector Commissioner (Commissioner) directives.
12. Under chapter 1, part 3 (Reframing of State’s relationship with Aboriginal peoples and Torres Strait Islander peoples) of the Act, reframing entities have a unique role in supporting the State government in reframing its relationship with Aboriginal peoples and Torres Strait Islander peoples by fulfilling certain responsibilities. Under section 21 of the Act, the chief executive of a reframing entity is responsible for ensuring the entity fulfils this role. Chief executives must act in a way which is consistent with these responsibilities when applying and making decisions under the Act and Commissioner directives.
13. Under chapter 2 (Equity, diversity, respect and inclusion) of the Act, chief executives of public sector entities must foster a respectful and inclusive workplace culture and ensure that employees have the necessary skills and knowledge to engage in employment matters in a respectful, appropriate and safe manner. Chief executives must make decisions consistent with the Act and Commissioner directives.
14. Chief executives should consider their obligations under the Managing the risk of psychosocial hazards at work Code of Practice 2022 when managing a workplace investigation.
15. In addition to the requirements in this directive, chief executives of public sector entities must consider ways to support accessibility and inclusion for employees when undertaking processes, or applying provisions, under this directive.

6. Interpretation of directions

6. The Act sets out the workplace investigation framework for the public sector under chapter 3, part 8, division 3 (Disciplinary action).
7. These directions:
   1. provide procedures for investigating the substance of a grievance or allegation relating to the work performance or personal conduct of a public sector employee
   2. explain how procedural fairness may be met, noting that requirements in this directive do not reduce the obligations on an entity at common law
   3. establish periodic reviews of a workplace investigation, including the period within which reviews must be conducted, to ensure timely finalisation of the investigation
   4. establish circumstances in which an employee, who is the subject of an investigation (subject employee), may ask the Public Sector Commission (Commission) for a review of a procedural aspect of a work performance matter in accordance with section 124 of the Act
   5. should be read in conjunction with the relevant authorising provision/s of the Act.
8. The requirements set out in these directions are binding and must be followed.
9. A chief executive must consider any guidance material issued by the Commissioner which is identified as guidance material for the purpose of this directive, and which is published on the www.forgov.qld.gov.au website, or in another publicly available way.

7. Reframing the relationship with Aboriginal peoples and Torres Strait Islander peoples

7. Chief executives must consider their responsibilities under section 21 of the Act relating to supporting a reframed relationship with Aboriginal peoples and Torres Strait Islander peoples for a workplace investigation process undertaken in accordance with this directive. This includes but is not limited to:
   1. promoting cultural safety and cultural capability at all levels of the public sector
   2. working in partnership with Aboriginal peoples and Torres Strait Islander peoples to actively promote, include and act in a way that aligns with their perspectives, when making decisions directly affecting them
   3. promoting a fair and inclusive public sector that supports a sense of dignity and belonging for Aboriginal peoples and Torres Strait Islander peoples
   4. supporting the aims, aspirations and employment needs of Aboriginal peoples and Torres Strait Islander peoples and the need for their greater involvement in the public sector.
8. In the context of promoting cultural safety in workplace investigation processes, the matters a chief executive may consider, but are not limited to:
   1. ensuring that the investigator has a sufficient level of cultural capability when conducting an investigation that involves an Aboriginal person or Torres Strait Islander person (including as a subject employee or witness)
   2. ensuring support and communication is appropriate during an investigation
   3. considering and documenting any elements of conscious or unconscious bias that may impact the process, including mitigation strategies.

8. Deciding whether to conduct a workplace investigation

8. A chief executive of a public sector entity may decide to investigate the substance of a grievance or allegation relating to a public sector employee’s work performance or personal conduct. In deciding to commence a workplace investigation, a chief executive must consider:
   1. the seriousness of the alleged conduct
   2. whether or not there is sufficient evidence already available, and whether a workplace investigation in these circumstances is an appropriate use of entity resources
   3. how procedural fairness requirements will be met
   4. whether there is a more appropriate option to resolve the matter through management action, alternative dispute resolution, or implementation of positive performance management strategies
   5. any other factors that the chief executive considers appropriate.

9. Conducting a management enquiry

9. A chief executive must not conduct a management enquiry in place of a workplace investigation with the intent to avoid the responsibilities and obligations of a workplace investigation under the Act or this directive.

10. Conducting a workplace investigation

10. Before starting a workplace investigation, a chief executive must authorise an investigation terms of reference that clearly outlines the terms and scope of the investigation.
11. An investigation is taken to have commenced when a chief executive authorises the investigation terms of reference.
12. The chief executive must demonstrate that any conflicts of interest have been considered and ensure conflicts of interest are disclosed, documented, monitored, and appropriately managed by all parties to the workplace investigation.
13. A chief executive may direct a public sector employee to participate in a workplace investigation where it is lawful and reasonable to do so.
14. A subject employee must be given reasonable opportunity to participate in the investigation. This includes being advised of the allegations against them, the opportunity to seek industrial advice and representation and being afforded reasonable opportunity to provide information about the allegations.
15. A subject employee has an obligation to cooperate with the investigation process, where they have been lawfully and reasonably directed to participate. This may include:
    1. attending an interview and answering questions relevant to the authorised terms of reference
    2. answering questions truthfully and to the best of their knowledge
    3. providing a response to written allegations relevant to the authorised terms of reference
    4. producing any documents or other objects that were created in the course of their employment or that are the property of the entity.
16. A person required to attend an interview as part of a workplace investigation:
    1. must be given reasonable notice of the interview so that the person may seek advice and arrange a support person and/or an industrial representative
    2. must be given a copy of their record of interview, if requested.
17. The findings of a workplace investigation:
    1. are not binding on the chief executive
    2. are not evidence that can be relied upon by the chief executive. The chief executive may only rely on the evidence that has informed the findings.

11. Support persons and industrial representatives

11. A subject employee may be supported by a support person of their choosing and/or represented by an industrial representative of a union to which the person is a member.
12. A support person (that is not an industrial representative):
    1. must not otherwise be involved in the investigation. For example, as a subject employee or witness
    2. may not provide direct evidence on behalf of, or otherwise talk for the subject employee.
13. An industrial representative that is an officer of an industrial organisation of which the employee is a member, has a role to support their member’s interests in line with industrial legislation and their union rules, including advocating for procedural fairness to be afforded to their member.

12. Procedural fairness in an investigation

12. Investigations must be conducted in a fair and balanced manner with no predetermined views.
13. Procedural fairness does not require that the subject employee be given access to every document seen by, or information given to, an investigator.
14. In a manner that meets the requirements of procedural fairness, the subject employee must:
    1. be told the substance of any allegations made against them with sufficient particularity to be able to answer the allegations
    2. where necessary to meet the requirements of procedural fairness, be told the identity of the complainant and/or witnesses
    3. be provided with evidence relevant to the allegations
    4. be given reasonable opportunity to respond to the allegations.
15. An investigator must:
    1. act fairly and without bias and ensure they do not make findings for which they have a conflict of interest
    2. inform a subject employee of the substance of any allegations against them, or grounds for adverse comment about them
    3. give participants in an investigation a reasonable opportunity to put their case forward, whether in writing or at an interview, or otherwise hear all relevant parties and consider submissions from them
    4. make reasonable enquiries before finalising an investigation
    5. conduct the investigation in a timely way.

13. Use of external investigators

13. A chief executive may engage an external investigator only if it is reasonably necessary or expeditious to do so.
14. The circumstances in which an external investigator may be engaged include:
    1. the requirement for specialist skills
    2. the existence of a conflict of interest, that cannot be managed by the entity
    3. resourcing, capability, or capacity of the entity
    4. the risk to public confidence.
15. The chief executive must comply with all relevant procurement obligations when engaging an external investigator.
16. The chief executive must select a suitably qualified external investigator listed in a relevant Queensland Government standing offer arrangement unless a different provider is approved in writing by the Commissioner prior to the commencement of the investigation.
17. An external investigator must conduct a workplace investigation on the same basis that a public sector employee would conduct a workplace investigation, in accordance with the Act and this directive.
18. An external investigator must consider any guidance material issued by the Commissioner under clause 6.4.
19. The chief executive must report on the conduct of the external investigation, where required to do so in accordance with the directive relating to workforce profile and work performance information.
20. An external investigator or their related legal practice or other advocacy entity must not be engaged to advise or act for the entity in any actual or contemplated disciplinary or other proceedings related to the investigation.
21. An external investigator is considered a functional ‘public entity’ under the HR Act. Like an internal investigator, they are subject to the human rights obligations of a public entity when carrying out an investigation on behalf of the chief executive.

14. Periodic review of investigations

14. This section applies to a workplace investigation related to a work performance matter, other than a corrupt conduct matter.
15. Clause 10.2 sets out when an investigation is taken to have commenced.
16. A chief executive is required to finalise an ongoing investigation in a timely way.
17. An investigation must be reviewed by an independent decision maker at six months, and by the chief executive at 12 months and every six months thereafter.
18. The review must consider:
    1. whether the investigation complies with the Act and this directive
    2. whether the investigation has been conducted in accordance with the investigation terms of reference
    3. the reasons for any delay finalising the investigation.
19. An investigation may continue while the review is completed.
20. The findings of the review must be communicated to the subject employee in writing.

15. Subject employee may ask Public Sector Commission for review of investigation

15. This section applies to a workplace investigation related to a work performance matter, other than a corrupt conduct matter.
16. A subject employee may ask the Commission to conduct a review of a procedural aspect of the entity’s handling of the workplace investigation, provided:
    1. the subject employee reasonably believes the chief executive has not complied with this directive
    2. the subject employee has utilised internal review procedures under the directive on individual employee grievances
    3. having utilised the procedures at clause 15.2(b), the subject employee is dissatisfied with a decision made following the internal review, and
    4. a decision has not been made for the work performance matter that the subject employee may appeal under chapter 3, part 10 (Appeals) of the Act.
17. The subject employee must request the review in writing unless circumstances exist where an employee requires reasonable adjustments to make the request in another way.
18. The request under clause 15.3 must address the requirements for review under clause 15.2 and include:
    1. a clear statement of how the employee believes the entity has not complied with this directive, and
    2. the action the employee seeks from the review.
19. On receiving the request, the Commission may:
    1. conduct a review of procedural aspects of the entity’s handling of a work performance matter in accordance with section 124 of the Act, and
    2. give the chief executive a report on the review, which may include a direction to fix any procedural elements that do not comply with the directive, or
    3. decide not to conduct a review.
20. The Commissioner must provide a written decision to the subject employee, along with reasons for the decision, including when the Commissioner decides not to conduct a review under clause 15.5.

16. Appeals

16. A subject employee has a right of appeal in relation to a direction given to a chief executive about the handling of a work performance matter, to the extent the direction affects the subject employee, as provided for under section 131(h) of the Act.
17. Appeals by public sector employees are heard and decided by the Queensland Industrial Relations Commission (QIRC) under chapter 11 of the Industrial Relations Act 2016 (IR Act).
18. The directive relating to appeals should be referenced for information regarding appeal rights and associated timeframes.

17. Records and reporting

17. Each public sector entity must, upon request, give the Commissioner a report about workplace investigations as provided for under section 128 of the Act and under any relevant work performance information directive.

18. Transitional provisions

18. The following transitional arrangements will apply to an investigation that has commenced prior to the commencement date of this directive:
    1. the workplace investigation should continue and be finalised in accordance with this directive, to the extent that is practicable
    2. for a public sector entity not previously required to seek approval from the Commissioner for the use of an external investigator not on the standing offer arrangement under the superseded Directive 17/20: Workplace investigations, the investigation may continue without needing to seek approval from the Commissioner.
19. For a work performance matter that commenced prior to the commencement date of this directive:
    1. where a workplace investigation periodic review was required to be conducted under the superseded Directive 17/20: Workplace investigations, and was not completed by the commencement of this directive, the review must be completed as if Directive 17/20: Workplace investigations remained in operation, or
    2. where the review date occurs on or after the commencement date of this directive, the review must be completed in accordance with this directive.

Unless otherwise provided, the terms in this directive have the meaning prescribed in the Act.

CCE Directive means a directive issued by the Commission Chief Executive under the repealed Public Service Act 2008.

Chief executive has the meaning provided for under section 16 of the Act or in the context of exercising a decision-making power, includes a person to whom the chief executive has delegated the decision-making power under section 282 of the Act.

Commissioner has the meaning provided for under section 212 of the Act.

Corrupt conduct has the meaning provided for under section 15 of the Crime and Corruption Act 2001.

Disciplinary process means anything done in making (or in contemplation of making) a disciplinary decision under chapter 3, part 8, division 3 (Disciplinary action) of the Act, including making a disciplinary finding and taking disciplinary action.

An external investigator is a person or service provider that is engaged through a contract arrangement to conduct a workplace investigation. Suitably qualified external investigators may be sourced through the Professional Services Standing Offer Arrangement (SOA) unless the required expertise is not available under the SOA.

An internal investigator is a suitably skilled Queensland Government public sector employee who is appointed by the chief executive to conduct a workplace investigation.

A management enquiry involves a manager or other assigned person making enquiries into a matter to inform a decision about how to progress. The enquiries may involve conversations with employees and/or a review of documents, obtaining a version of events, in writing or verbally. Management enquiries do not involve terms of reference or formal investigative interviews.

Procedural fairness is a right recognised and defined by law that involves two key elements—the hearing rule (the parties shall be given adequate notice of the case against them, and a right to respond), and the bias rule (everyone is entitled to a decision by a disinterested and unbiased adjudicator)

Public entity has the meaning provided for under section 9 of the HR Act.

Union or industrial organisation, for the purpose of this directive, means an employee organisation registered under chapter 12 of the Industrial Relations Act 2016 or under the Fair Work (Registered Organisations) Act 2009 (Cth).

A workplace investigation occurs when a chief executive decides that an investigation should be conducted. An investigation can be defined as the unbiased gathering and evaluation of evidence.

Work performance matter has the meaning provided for under section 122 of the Act.