Document ID: chunk:federal_register_of_legislation:F2018N00155:reg:5:p10
Version: federal_register_of_legislation:F2018N00155
Segment Type: reg
Provision Reference: reg 5 (pt 10/13)
Character Range: 28311–31169

Ensure that the investigation of the complaint or allegation is conducted in a fair and unbiased manner.

       (a)    A transparent process should be followed that gives a worker a reasonable opportunity to present their views on all relevant issues.

       (b)    The person conducting the investigation should do so with an open mind and avoid forming a view on whether to sustain a complaint allegation against a worker before the investigation is complete.

       (c)    Consider whether any decision to impose a sanction should be made separately by someone other than the person who conducted the investigation, to avoid any appearance of prejudice or prejudgement at this stage.

  13    Procedural fairness – practical considerations
    (1)           Fair process: Procedural fairness requirements aim to ensure that a fair process is followed in decision making that could adversely or detrimentally affect the rights or interests of a person. The underlying assumption is that a fair process will lead to better decision-making – and, in this context, better and fairer complaint handling. However, procedural fairness requirements stop short of assessing whether a particular decision or outcome is fair: they address the process to be followed in reaching a decision, but not the substantive merits of that decision.
    (2)           Fair process overall: The obligation to afford procedural fairness applies to the overall process of making a decision or resolving a complaint, and not separately to each stage in that process. A person should be given a reasonable and informed opportunity to comment on any adverse finding or sanction before it is finally determined. The precise point in the process at which that opportunity is given can be of secondary importance.
    (3)           An illustration of that principle is that there is generally no procedural fairness obligation to notify a person of an adverse allegation or potential finding when a complaint is first recorded or referred to another body. A reasonable opportunity to comment on the allegation or potential finding can be given at a later stage. This enables appropriate analysis of a complaint to determine if it should be managed as a complaint about the level or quality of services or supports that a person with disability is receiving, rather than an allegation of inappropriate conduct by a worker.
    (4)           A person who is facing a potential adverse finding or sanction should be reassured as necessary that the overall process will be fair. Equally, a deficiency at an early stage of the process can be corrected at a later stage, provided this is done by a good faith process in which the decision maker approaches the issue with an open mind and gives genuine consideration to any submission made by the person to whom procedural fairness is owed.