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Workplace Investigation or a Criminal Investigation?

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What is a Workplace Investigation?

A workplace investigation is a process in which employers investigate complaints, potential serious conflict or allegations of misconduct in the workplace. By dealing with conflicts and allegations immediately upon becoming aware of them. The potential for a matter to escalate is reduced and the employer is adhering to their duty to investigate. It has been held that on receipt of a claim or complaint “it is reasonable for [an employer] to consider it [has] a duty to investigate”.[1]  Similarly, and in the context of bullying allegations, it has been stated that an employer has “a responsibility to investigate”.[2]

Additionally, engaging in proper workplace investigations shows your employees that you respect them and their rights, leading to better organisational culture in which employees are committed and motivated to work for the good of the organisation.

How The Workplace Investigation Starts

Incidents that may be minor in nature can often be dealt with internally with a minimum of fuss. Mediation, informal counselling, employee assistance or a workplace review are all possible options to remedy a minor situation. However, workplace issues such as allegations of bullying, discrimination or sexual harassment, embezzlement, fraud or misconduct, amongst others, may need a thorough workplace investigation to be conducted.

How to Have a Successful Workplace Investigation

Workplace investigations often reflect strong emotions and can be quite confronting for both employees and employers. It is important to make an objective assessment of the matters or facts presented. In some instances, employer’s may want to engage an external independent investigator for more serious allegations.

The purpose of a workplace investigation is to get to the bottom of what happened and to to determine whether alleged events occurred. In order to do this, an employer may be required to gather evidence, such as statements or records, in relation to the allegation or issue raised. This evidence is then used to determine whether there is a sufficient amount of evidence to prove allegations.

When making allegations of serious misconduct, the employer must specify the misconduct that the employee is alleged to have committed. They must contain sufficient information so that the employee can respond fully to the allegations. If allegations are vague or ambiguous, it makes the process unfair. A dismissal or disciplinary action could be successfully challenged in the Fair Work Commission or relevant tribunal if the process is unfair.

Responsiveness to an employee’s grievance about workplace alarms not only enables the company to gather the best evidence, it also provides the employer with the chance to resolve problems before they become a more serious legal problem.

Although employers are obligated to investigate matters before reaching a conclusion or substantiating any allegations. There is no single legal framework that sets out the way in which investigations should be conducted. Thus, the process can sometimes be uncertain or confusing, creating potential room for error in an employer’s actions.

Steps To Be taken, a Guide

While each situation is unique, the following is a checklist of steps you should ensure the Employer has taken as part of a fair process for you.

  • Obtain a through written statement from you
  • Ensure Confidentiality, Not tell everybody you have complained or what the allegations are against you and what its about.
  • Non-Retaliation and Explain Next Steps, you should not necessarily be stood down, receive a warning, moved to your detriment
  • Gather Tangible Evidence, Employer must be through
  • Interview all witnesses 
  • Interview the accused before making a decision 
  • Give you feedback and the opportunity to reply, allegations have to be detailed and put to you in a fair way
  • Investigation Closure, outcomes
  • Written Investigation Summary, you should be given a copy

Support Person

Further, the Fair Work Act 2009 (Cth) specifies that any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal must be taken into account when the Fair Work Commission decides if a dismissal was unfair. It is not unreasonable, however, for the employer to require that the support person is not someone who was involved in the misconduct or witnessed any of the incidents. If the support person is a union representative or lawyer, they should not speak on behalf of the employee unless there is a good reason why the employee cannot speak on their own behalf.

However, there is no “right to silence” for an employee, unless the investigation concerns conduct which is or could be criminal. Employees should always cooperate with workplace investigation and an employer can still decide that misconduct has occurred, even if the employee makes no response.

Standard of Proof – Civil v Criminal

It is important to remember that in workplace investigations, the standard of proof is the “balance of probabilities”. Thus, the employer must determine the likelihood of one party’s version of events being more probable to have occurred than not.[3] This is a lesser standard than the proof required for criminal matters, where criminal allegations must be proven “beyond reasonable doubt”. Thus, workplace investigations are not expected to be conducted in the same way as police investigations.

Nevertheless, it is important to keep in mind the principles of evidence which might apply. This is particularly important where many workplace investigations may end up in the Fair Work Commission, through an unfair dismissal, general protections claim or otherwise in a contentious, litigated setting.

How Much Evidence is Needed?

The High Court in Briginshaw v Briginshaw,[4] gave guidance on how it is that a court may find that something happened. It was held that the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

This has led to the Fair work Commission and various industrial tribunals to make statements such as “the allegation [must be] established with … comfortable satisfaction”.[5] It is also said that Briginshaw “require[s] the respondent to make out its case in a convincing way”.[6]

No Evidence

For the instigation of a workplace investigation, there may be identified concerns or even some allegations. However, more often than not, there is little to no evidence. Thus, if an employer is worrying about the amount of evidence required to substantiate an allegation and they are acting like police officers, there may be serious consequences.

For instance, a complaint of sexual harassment or bullying is often a matter of one person’s word against another’s.  Thus, if an employer decides that neither of those allegations can be substantiated under Briginshaw, are they required to take no action? If the employer takes no action and the sexual harassment or bullying continues, the employer may be liable under certain workplace laws.

In the context of sexual harassment, discrimination legislation provides that an employer is vicariously liable for an employee sexually harassing another employee unless they can establish they “took all reasonable steps to prevent the employee” from engaging in the unlawful sexual harassment. Thus, employers cannot always rely on the fact that there is “no evidence” to substantiate allegations. 

Does the punishment fit the crime?

If an employer decides that an employee has engaged in serious misconduct, they must ensure that the disciplinary action is proportionate to the alleged conduct. Thus, punishments such as dismissal, should only be used in more serious allegations, serious misconduct or where there is an abundance of evidence. Even if there is substantial evidence to substantiate an allegation, dismissal may be a harsh response in the context of the employee’s service or previous unblemished employment record.

Thus, the employer must carefully weigh up the matters before them and what punishment is appropriate. If an employee is not satisfied with the outcome, the employee can dispute the findings through a claim of unfair dismissal in the Fair Work Commission.  

The Fair Work Commission may render a dismissal unfair because the employee was not guilty of the alleged misconduct, unreasonable because the evidence or material before the employer did not support the conclusion, harsh on the employee due to the economic and personal consequences resulting from being dismissed, or harsh because the outcome is disproportionate to the gravity of the misconduct.

Subject to a workplace investigation?, or concerned you will be?, get advice now, its free, Ring A Whole New Approach P/L don’t wait until your dismissed, you have rights, its a matter of how you excise them, 1800 333 666


[1] Blow v SBD Services Pty Limited [2013] FWC 5733.

[2] Ms SB [2014] FWC 2104 at [18].

[3] TNT Management Pty Ltd v Brooks (1979) 23 ALR 345.

[4] (1938) 60 CLR 33.

[5] Paul Barnett v Qantas Airways Limited [2006] AIRC 698.

[6] Budlong v NCR Australia [2006] NSWIRComm 288.

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