units

LAW7496

Faculty of Law

Postgraduate - Unit

This unit entry is for students who completed this unit in 2014 only. For students planning to study the unit, please refer to the unit indexes in the the current edition of the Handbook. If you have any queries contact the managing faculty for your course or area of study.

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6 points, SCA Band 3, 0.125 EFTSL

Refer to the specific census and withdrawal dates for the semester(s) in which this unit is offered, or view unit timetables.

LevelPostgraduate
FacultyFaculty of Law
OfferedCity (Melbourne) Trimester 3 2014 (On-campus block of classes)

Notes

Quota applies

Postgraduate programs are based on a model of small group teaching and therefore class sizes need to be restricted.

Synopsis

This unit explores the legal framework for workplace investigations in the private and public sectors in Australia and the role and significance of such investigations for discipline, job security, worker and workplace safety, compliance with laws and employment relations. Conducting an investigation in accordance with employment and administrative laws will be analysed; and the rights and obligations of employers, employees, witnesses and decision makers will be explored.

The areas to be addressed are:

  1. Investigations into employee misconduct in the public and private sectors - legal issues

  • legislative and other sources of power to investigate
  • nature of misconduct
  • natural justice and procedural fairness
  • right of representation by lawyer, friend or union
  • role of witnesses
  • powers of investigating body
  • standard of proof and nature of evidence
  • confidentiality of witnesses, the report, freedom of information
  • legal professional privilege
  • the impact on the investigation of a criminal investigation which is also being conducted or the a lying of criminal charges are laid?
  • legal effect and publication of report
  • consequences of inquiry
  • duty of trust and confidence in employment
  • right of redress - Fair Work Act 2009 (Cth) and discrimination legislation
  • rights of appeal and review
  • relevance of privacy legislation

  1. Conducting workplace investigations of misconduct of employees.
    • contract of employment
    • enterprise agreements governing the investigation process -RTBU v KDR Victoria Pty Ltd t/as Yarra Trams [2013] FCA 330 (incorporation of Disciplinary Counselling Policy and Procedures re inquiry following dismissal into enterprise agreement)
    • internal processes and workplace policies
    • nature of misconduct and the conduct the subject of investigation
    • suspension from employment
    • scope of investigation
    • who should undertake the investigation and choosing an independent investigator
    • right of representation - legal or other, including union
    • how to assess evidence, what is relevant and irrelevant, and what is hearsay?
    • dealing with witnesses and documents and witness reports
    • findings recommendations and advice.

  1. Review of Federal and State legislative proposals concerning bullying and internal investigations

  1. The role of other bodies including the Fair Work Commission and the Fair Work Ombudsman, the Australian Human Rights Commission and the Victorian Equal Opportunity and Human Rights Commission, in investigating employee misconduct.

Outcomes

On completion of this unit, students will be able to:-

  1. Understand the legal framework for workplace investigations and the sources of the power to undertake investigations of employees' misconduct in the workplace, both in the public sector and the private sector;
  2. Understand and critically evaluate the process of workplace investigations including the nature of the investigating body and its powers, the right of representation, relationship of the investigation to civil and criminal proceedings, and evidentiary and natural justice issues;
  3. Analyse the impact of legislation relating to privacy and the retention of, and access to, records and the investigator's report, and the effect of legal professional privilege;
  4. Critique the impact of legislative developments in unfair dismissal and general protections to employees, and bullying, in particular under the Fair Work Act 2009 (Cth) and the role of institutions such as the Fair Work Commission in workplace misconduct;
  5. Understand topics of conducting workplace investigations and responding to bullying issues through practical case study teaching methods which emphasise how these matters are likely to arise in a practical context.

Assessment

Research assignment (3,000 words): 40%
Take-home examination (3,750 words): 50%
Class participation: 10%

Chief examiner(s)

Workload requirements

24 contact hours per semester (either intensive, semi-intensive or semester long, depending on the Faculty resources, timetabling and requirements)