NSW Evidence - Protracted and Unreasonable Investigation Delay?

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DMLegal

Well-Known Member
28 May 2018
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Well this thread got heated fast. Charlie1712 as Rod correctly stated, you are not going to get 'legal advice', rather you may get a response which typically encompasses a general observation on the law and not on a posters specific circumstances. I ascertain from your comments to Rod, which I think were wholly inappropriate and quite distasteful, that this matter is causing you some angst, so on that basis I will make some brief comments on your questions.

1. An investigation into possible minor misconduct gone on for over 13 months since the incident was first reported.
It is not clear what you mean by 'investigation'. I will proceed on the basis you were asked some questions about a matter and advised that it will be looked into further in due course, or something of that nature. If I am wrong on this point please let me know

2.There has to be some legal principles involved such as condoning the actions by management...

Misconduct is never 'condoned', it might be excused in some circumstances, but that is quite different from condoning misconduct.

3. There has to be a legal right to a fair trial and procedural fairness as I think this constitutes cruelty and punishment towards the person alleged to have breached the code.
Indeed there is a right to a trial by jury and it is found in s 80 of the Constitution -

80. Trial by jury
The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

The difference in your case is that you are not on trial because the misconduct was presumably not criminal. If it was, you would not be on trial against your employer, so it wouldn't matter either way. You have no right to a 'fair trial' (what you mean by 'fair' is unclear) in relation to the alleged misconduct.

4. I think it sounds like a witch hunt or muck raking exercise?
You said there may be evidence, thus it can hardly be considered a witch hunt?

5. How long is long enough - 1 year / 2 years? The longer it takes the more it works in my favour as people move on and memories fade.

I will answer this question with a rhetorical question - Is Cardinal Pell accused of 'recent crimes'? There is no limitation period on criminal conduct and while memories fade, records do not.

6. Does the employer not owe me a common law duty of care to consider the impact that an unreasonable delay on my health? I at least should have been informed if there was going to be a delay.
Why should you? If you engaged in misconduct your employer has no obligation to 'keep you informed'.

7. It is not criminal or serious misconduct and if it was it should have been acted upon when it was first reported.
To me it sounds like it was, an investigation commenced did it not?

8. My health is suffering as a result of this matter.
I would ask how your health is suffering, but it really doesn't matter since there is no cause of action in your case.

9. It can't die a natural death because I need to be cleared for future employment from any wrong doing.
I am as perplexed as Rod in relation to this statement. Are you concerned your current employer might continue the investigation after you resign and at some point in the future contact your new employer and advise of the purported misconduct? Or are you concerned criminal charges may stem from the misconduct and this would impact future employment?

10. If it was
unfair dismissal I understand I would have a case that the employer condoned my actions by not acting on it for 12 months before I was advised of suspected breach.
You are (apparently) under investigation therefore until the conclusion of the investigation the consequences of your actions are not decided.

11. I read up on judicial review and believe there are a number of grounds based on case law that I could argue successfully.

I don't know where to start with this statement. Suffice it to say no sane lawyer would (or could) take this matter for judicial review. That is unless it could be scheduled for April 1st and he/she felt like retiring with a bang with a finding of professional misconduct to go with it.

12. What I am after is a general how-to guide on pitfalls to avoid when contracting a lawyer and options to take.
I will put this as generally as possible - Don't. If anything comes of your situation then by all means reassess and consider taking action. At the minute you're trying to sue Bigfoot for trampling your rosebush....Bigfoot needs to be found first.

13. I understand it can take a minimum of $20K to take the matter to conciliation and costs skyrocket if it does not settle.
You have nothing to conciliate.

14. I need to do as much of the leg work as possible i.e. preparing timelines, evidence, background info to keep lawyers time down to keep my costs down.
What you are suggesting is unbundled legal services, most lawyers don't engage in such arrangements.

In essence, just leave it. If they threaten to fire you, or use the misconduct as blackmail, then maybe take action; until then you have no action or case. Your efforts to have the matter concluded gives an indication of guilt (whether that be correct or not). It will ruin any prospect of promotion with your employer (whether it be sought or not) and will stress you to the point that you are abusing people on an Internet forum.
 
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