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Workplace Investigation, Can I go ‘no comment’?

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You may have heard of an accused criminal having a ‘right to silence’. Does such a right to silence extend to workplace investigations? Can you refuse to comment during an investigation? Can you be dismissed for this?

Of course, it’s important to remember that criminal trials have a much higher burden of proof than workplace investigations. For allegations in a workplace investigation to be substantiated, it is only a determination of whether it is more likely or not that you engaged in the alleged conduct. Compare this to a criminal trial, where the case must be proven beyond a reasonable doubt. In criminal trials, it is the prosecution who is given the difficult task of proving the guilt of the accused beyond a reasonable doubt, and therefore an accused’s right to silence should not impact the case against them.

However, in workplace investigations, there are no such strict standards of proof and it is possible that an employer is influenced by an employee refusing to comment in the investigation. Even if it is not fair, an employee’s refusal to cooperate in an investigation may be taken by the employer to signify their guilt.

Should I remain silent?

If you are thinking of remaining silent during a workplace investigation, it is important to consider why. Workplace investigations can be a traumatic ordeal and rife with difficulties. You may be afraid of the process or scared that you will lose your job. However, it is important to weigh up whether it is best for you to try and defend yourself, or remain silent. Typically employers may look more favorably on employees who contribute to the investigation, are cooperative, and explain their side of the story.

Employers are obliged to conduct their investigations and make their decisions with procedural fairness, but in reality, there are no guarantees. If the allegations against you are completely false, by not providing evidence that may speak in your favor, you may be hindering your chances of keeping your job.

Additionally, if you stay silent and you are dismissed following the investigation, it may be difficult to raise an unfair dismissal case on the basis of unfairness in the investigation, because you did not contribute.

Moreover, if you are apprehensive about the process, you have a right to request a support person for any discussions relating to disciplinary matters or dismissal. You have this right by law, even if your employer does not explicitly inform you that you do. An employer cannot unreasonably refuse your right to have a support person present, and if they do and you are dismissed, you may have a case for unfair dismissal.

What are the benefits of defending myself?

If you defend your case, you can maximise your prospects of keeping your employment or not being subject to disciplinary action. If you have evidence or an explanation that absolves you of all or part of the allegations, why would you withhold that information to your detriment?

Of course, it can be difficult to know how to defend yourself and you may be intimidated by the process. It is important to remain calm, collected and cooperative. Gather up as much information as you can that will support your case, whether this be just an explanation of your side of the story, or other evidence in your favour.

During the investigation, try to avoid being angry or aggressive, as this is only likely to create hostility between yourself and the investigators and can worsen your employment prospects. Even if you disagree with what has been said, do your best to calmly and clearly say why you disagree.

What if I have not been treated fairly during the investigation process?

If you have not been afforded procedural fairness during the workplace investigation procedure, you may have a case for Unfair Dismissal or General Protections in the Fair Work Commission, depending on your particular circumstances. Procedural fairness means that the process must be fair and impartial in every way possible. For example:

  • The investigator should not be biased or ask inappropriate questions;
  • The allegations should not be fabricated or exaggerated;
  • You should be given adequate notice of any meetings and an opportunity to respond;

If at any stage of the investigation procedure, you feel like you have not been treated with fairness, respect, dignity or understanding, you may have been deprived of procedural fairness.

Some employees treat investigations almost as a sport, (catch me if you can) its not, its your job, your livelihood, its important you do what’s required to keep your job. What the Fair work Commission decisions refer to as “maintaining the trust and confidence of the employer”. You need to avoid the unfair dismissal regime or general protections claims where possible. try and work with your Employer is possible, if its a hopeless situation, don’t resign, call us.

If unsure or if you would like assistance in protecting your rights, unfair dismissals claims, general protections, issues you can call 1800 333 666 for an obligation-free consultation. Workplace investigations can often be a confusing process, so receiving further information can provide some clarity and support.

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