False Accusations at Work

False accusations in the workplace are incredibly difficult to digest and overcome. More often than not the accusation is done anonymously and is completely unexpected. What can result from a false accusation is widely depending on the context. The specific circumstance of the accusation and type of workplace. Some false accusations can be more easily resolved when regarding poor performance or a culture of the company.

However, other accusations can involve serious misconduct where there is typically alleged discrimination, violence, sexual harassment, or or involving sensitive information. False Accusations at Work is compulsory reading we have all been falsely accused somewhere along the line in our employment.

A formal investigation will often take place. This is where HR or relevant body/person will information gather and discover the facts. (often involving interviews and questioning). This is in order to decide on a resolution method. Some of the biggest risks of false accusations are defamation of character or even termination of employment. Therefore, it is imperative to understand your rights and expectations as an employee. In turn what is expected from the employer when investigating false accusations.

Section 387 of the Fair Work Act

When an accusation arises there should be comfort in the fact that HR (or relevant person) is legally required to uphold procedural fairness when uncovering the accusation. Per section 387 of the Fair Work Act 2009 (Cth). It is required that the employer allows the employee to respond to accusations. In theory allowing you to understand what the accusation is and giving you a chance to defend yourself. Not all employers comply with their legal obligations. It may be difficult to overcome the stress of responding to false accusations and sometimes blatant lies. Therefore, we have compiled a list of actions to take when there is a false accusation and avenues that can be taken if there is potentially adverse action from the false accusations.

What can I do if there are false accusations about me?

When an accusation is brought to your attention the first step is to try and remain calm. In a perfect world justice and procedural fairness will prevail, therefore remaining calm will help to understand all the accusations and how the employer has decided to move forward. Sometimes the employee is asked to keep working as normal. However they can also be stood down (suspended) and sent home without work pending further instructions or results of an investigation. (Make sure this is with pay)

 Once you are informed of the accusation and how the employer is moving forward you should first request to be shown the evidence supporting the accusation. And any further details if not already provided. Ask for the day the supposed accusation took place, the time it took place, who was involved, if there is a workplace policy involved. Ask for the specific clause in the company policies that is relevant. Evidence can also include text messages, emails, or CCTV footage. Be conscious that context is important and where there may seem to be misconduct is actually a misunderstanding that can be explained.

Ask for the CCTV footage

For example, if there is CCTV footage always asks for the entirety of the footage. Do not allow the basis of the accusation to rely on a 10, 20, or 30 second video. Additionally, you should request time away. Not only to process the accusation but to also organize a response. Depending on the severity of the accusation you may want to consider preparing your own evidence. Organising a support person, ask for legal advice, reading through the company grievance procedures, or researching if your position is covered by any modern awards (or other instruments) that stipulate certain accusation/investigation requirements.

Regardless of the type of accusation, or how the accusation is treated, it is important to cooperate and remain professional. Even if you know you are innocent, there is no reason to give the impression that you do not want to clear your name or raise suspicion. Furthermore, it is important to consider your employee-employer relationship after the accusation and investigation has concluded. Cooperation and professionalism can only improve your workplace relationship once everything is said and done.

What should I do during the accusation process?

Due to the requirements of procedural fairness there are a few expectations while the accusation is being investigated or while the employer is deciding their next steps. There is the expectation that you will be given an opportunity to respond to the accusation. As per unfair dismissal case of Wagey v YMCA Canberra [1996] IRCA568. The employer must provide a genuine opportunity where the explanation or defense has the chance to persuade the employer. It is not a genuine opportunity to respond if the employer has already decided to dismiss or place the employee in an adverse position prior to the employee being provided an opportunity to respond. For example, if an employer were to dismiss an employee based on false accusations and had a printed a dismissal letter at the meeting informing the employee of the accusation for the first time^[1]. Typically this will be a scheduled meeting.

Other expectations are that you will be promptly informed of any updates or discoveries regarding the accusations. Furthermore, it is typical the contents of the accusation and/or investigation will be confidential. Only to be discussed with HR, involved employees, yourself, and any legal help. This is not guaranteed or written in legislation. However, most company procedures include a confidentiality agreement or stipulate it when the accusation is first brought to an employee’s attention. Typically it depends on the seriousness of the accusations. Other factors will affect the fairness of an investigation. It could include providing enough time to respond, or choosing the most appropriate witnesses and employees to interview. Not all investigations will be directed exactly the same.

Keep a record

During the process try to keep a record of everything that has transpired. Not only as a reference in case a similar situation happens again, but if there is an unfair process or you have been placed in an adverse position then it will be easier to bring a claim forward to the Fair Work Commission.

If you believe that any part of the workplace investigation process is not done fairly then it is best to bring your complaints to the employer. Especially if there are serious false accusations that can affect your standing or character in a company it is essential that an investigation is done according to legislation and properly. Even when the accusations are proven false there can still be a lasting impression against the employee.

Outcome of an investigation.

There are a number of options and outcomes that can occur from an investigation or false accusations. Even though the accusations are false, that does not mean that the employer has taken every necessary step to discover that fact. Therefore, unfortunately employees have been placed in adverse positions or even dismissed over false accusations.

Even if the false accusations are supported to be false the damage of an workplace investigation has defamed the employee to a point where damage has occurred. Important to note that a claim cannot be taken against the employer simply because an investigation has occurred and you did not like it. There must have been an adverse effect that has negatively affected the employee in some way. Either defamation, termination, losing income or other effects to a similar nature.

When the accusation is proven wrong:

When an investigation is completed and the accusation was proven false but your standing and character were still affected then there is an opportunity to file for defamation of character. Defamation in Australia is when ‘serious harm is caused to someone’s reputation by publishing material about them that changes the way people feel about them’^[2]. There are three elements to consider before trying for defamation. That there was a false statement. The statement was referencing the employee to a third party,  and that damage had occurred from the communication from the statement. In the workplace it would be the equivalent of the false accusation being spread around the office and causing colleagues to treat you negatively, bully, harass, or isolate you.

The process of suing for defamation is expensive and will almost always require legal expenses. You can try to negotiate compensation or a public apology directly with the employer prior to going to court. However, for the greatest success a lawyer is necessary. If negotiation does not work then you will have to go through the court system which will incur its own set of fees, in addition to the price of good representation. Note, that to file for defamation it must be done within 12 months of knowing that you have been defamed and each state has their own limit for financial compensation. The court system is also infamous for their long wait times. It can take years to reach a settlement if the employer is contesting that they defamed you.

Fair Work Commission

To enter the court system is a big decision, therefore to lodge a claim with the Fair Work Commission may be a more accessible option. If the accusation was proven false and you are still employed at the company then you may consider a General Protections claim (not involving dismissal), or also known as an F8C Form. This claim can be lodged on the basis that you have exercised a workplace right and then adverse action was taken against you.

In this context a workplace right would typically involve the right to complain about the course of your employment. For example, about the unfair process of spreading false accusations around the workplace, about not complying with procedural fairness, or about the fact you are being treated in a worse way (since the false accusation came to light) and the employer refuses to provide mediating factors^[3]. Due to these complaints, or similar complaints, the employer has performed an adverse action against you. Adverse action is set out in section 342 of the Fair Work Act and can also include dismissal, injury, altering an employee’s position to their detriment, and discrimination.

Lodge a General protections claim

By lodging an F8C Form you will be asking your employer to enter into a negotiation process with a Fair Work member to negotiate and agree upon a settlement. To remedy the action taken against you, you can ask for financial compensation in the form of a number of weeks wages, as well as general damages. Additionally, you may ask for an apology from your employer. There is no strict list of what can be asked for as a remedy, however there does have to be a level of appropriateness. (some common sense has to apply here).Note, that you may take this opportunity to choose to resign from the employer as lodging a claim against them does have the opportunity to ruin the employer-employee relationship, in addition to already being adversely affected.

If the false accusation results in termination of employment:

In the unfortunate circumstance that the false accusation does result in your termination then there are two accessible options. You can lodge a General Protections Form (involving dismissal), or also known as an F8 Form. The basis is identical to an F8C Form where you have exercised a workplace right and have been placed in an adverse position, however the adverse action is the dismissal (or termination) from your employment. In addition, it is easier to negotiate general damages as you are more likely to face financial detriment, and thus greater emotional detriment. Furthermore, you can ask for your termination to be changed to a resignation. Typically making it easier to find future employment.

The stipulation is that you must have exercised a workplace right and as a result you have been dismissed. Typically, complaining about the unfair process of an investigation. Where the employer has decided to remove you all together rather than properly and fairly completing the investigation process. Other workplace rights can include taking leave (sick leave, annual leave, maternity leave), complaining about any part of your employment (commonly pay or working conditions), or taking industry action.

Lodge a unfair dismissal claim

The second option is to lodge an Unfair Dismissal claim, also known as an F2 Form. If you were terminated on a false accusation then it is also common that the employer did not follow their legal obligation to follow the correct procedure when terminating employees. Section 387 of the Fair Work Act 2009 (Cth) provides a list of obligations. The most common is not allowing the employee an opportunity to respond to the accusations, not allowing a support person to the employee when they were terminated, or being genuinely harsh, unfair, or unreasonable during the termination. This can include aggravating factors such as termination over an email or phone call.

Unfortunately, there are greater restrictions on who can lodge an F2 claim. The employee must have been employed for longer than 6 months (for a big business with more than 15 employees). 12 months (for a small business with less than 15 employees). Furthermore, must earn less than $162,000 AUD salary (as of the 2022 financial year).

Regardless if you want to lodge an F2 or F8 Form, both have a strict time limit on when they can be lodged. There is a 21 day limit after you have been notified of your dismissal to lodge your claim. After the 21 days have elapsed (including public holidays and weekends) there is no more opportunity to lodge a claim. 

Conclusion to: False Accusations at Work

If there has been a false accusation against you then the most important step is to remain calm and gather everything that is available to you. However, if you are placed in any adverse position, including defamation of your character, your employment being altered to your detriment, or termination, then there are accessible options that can be taken to help mitigate those situations. By going through the court system or Fair Work there may be action from your employer or financial compensation. Subjected to workplace harassment, or dodgy workplace investigation call us, don’t delay

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^[1] Ryan v Logan & Co Pty Ltd [2011] FWC 161.

^[2] Victoria Legal Aid, Defamation (Webpage, 11 April 2022) < https://www.legalaid.vic.gov.au/defamation>.

^[3] Farac v Pendal Group Limited [2021] FedCFamC2G 25,