Important Information
Our Advice to All Hardworking Australians
Has a workplace investigation been initiated against you, an employee, by your employer? A workplace investigation may be conducted after an allegation made against you by another employee, or if the employer has any concern about your conduct or performance – regardless of whether this alleged concern is genuine or not. The allegation could entail a serious complaint about sexual harassment, bullying, or other unlawful behaviour that is against company policy.
Employers have broad discretionary powers to take ‘reasonable management action’, granted by the Fair Work Act 2009 (Cth), which allows them to thoroughly investigate the issues regarding the specific employee and the alleged complaint against them. There is no steadfast law on what an employer must do, to carry out a reasonable investigation, but they must consider procedural fairness when doing so.
How They Should be Conducted
An investigation should always have a clear purpose, and usually falls into one of the following categories:
- To determine whether allegations have occurred; or
- To identify further information and mitigate negative situations.
Management should always be able to justify why they are carrying out such management action, such as in the form of a workplace investigation. This means that employers should only act on provable facts. They should not unfairly subject genuinely innocent employees to such actions, based on hearsay or mere suspicions.
Before an employer even contemplates holding a Workplace Investigation against one of their employees, they must fully understand how to conduct an effective investigation. To do this, an employer must turn their mind to what an investigation involves, including their legal obligations and the employees’ rights, the investigator’s role and the proper process, how to collect evidence and witness statements, how to record and when and where these recordings can be used, and most importantly, what to do after the investigation.
‘Proper’ and ‘lawful’ Workplace Investigation is defined by various different authorities including legislation such as the Fair Work Act 2009 (Cth), industrial agreements (mainly Modern Awards or Enterprise Agreements), specific terms of the employment contract, Policy and processes that the Company enforces, and guidelines from ‘Unfair Dismissal’ laws with regard to procedural fairness.
Understanding workplace investigations can be tough. Always speak with an expert who's on your side to get the right advice. Our free hotline is open 7 days a week - 1800 333 666
The general principles of procedural fairness that are expected to be undertaken by employers during Workplace Investigations are listed but not limited to, the employee:
- Receiving reasonable prior notice in writing that a workplace Investigation is underway for them;
- Receiving clear information on what the meeting is about and its content;
- Receiving, in writing, carefully framed allegations that do not suggest a pre-determination of the issues at hand;
- Being given sufficient notice to have ample opportunity and time to prepare their response to all allegations and concerns;
- Being allowed to bring a support person whether that be a spouse/partner, family, friend, or union representative, to the meeting; and
- Having their defence or explanations in the meeting given proper consideration before the final determination is made.
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Some red flags indicating a possible breach of the duty of care of the employer include using technical legal language (e.g. harassment, assault, theft) when characterising the allegations before anything is proven or found, any sign of the employer already having made their mind up on the final determination of the allegations (e.g. by pre-preparing a termination letter that is drafted and immediately handed to the employee on the spot before their explanation or defence is reasonably heard) or not providing or keeping accurate documents on the Workplace Investigation in its entirety (not valuing the employee’s evidence and statements as much as the original complainant’s).
Although the Workplace Investigation is pivotal, the procedure may ruin the employer if they fail to comply with legal requirements. In some cases, even if your dismissal was warranted, if there was any mistake in the procedure and carrying out of the Workplace Investigation, you may have cause for action (e.g. mischaracterisation of misconduct in the letter of the allegation, Jimenez v Accent Group T/A Platypus Shoes (Australia) Pty Ltd [2016] FWC 5141). If the employer has not given proper notice to you before holding a Workplace Investigation, it can be seen as a direct denial of your opportunity to have a support person and you having sufficient time to make your defence against the relevant allegation (e.g. Roelofs v Auto Classic (WA) Pty Ltd [2016] FWC 4954 where it was found that the employer had ambushed the employee about inappropriate behaviour in the workplace without prior notice and therefore did not have the proper chance to explain his actions).
It can also be argued that employers have a duty to provide adequate and real support to their employees – approaching employees’ concerns with genuine sympathy and understanding that prolonged stress in the workplace could manifest itself in acute and serious mental illnesses such as depression, anxiety, etc. Employers should appreciate the real probability of an employee suffering mental impairments directly from workplace stress, as they are held to a higher standard of familiarity with the workplace and all its risks. Thus, when approaching workplace investigations, particularly those of more serious allegations such as sexual harassment or discrimination, employers have a duty of care in this context to act to a certain standard.
Duties of care could include:
- A sympathetic approach to all parties involved in the workplace investigation;
- A timely update on how the complaint is progressing;
- Affording proper explanation as to all the steps and decisions made during the investigation, e.g. if an employee is being stood down, making sure they are properly aware of why this decision has been made;
- A complete absence of bias when approaching the allegations;
- Affording complete confidentiality which could include controlling rumours and reprimanding those that engage in gossip; and
- Ensuring that all parties to the Workplace Investigation are properly supported and offered support or access to the employer’s counseling service.
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How should YOU approach the Workplace Investigations?
The most significant thing is to be prepared. Be completely ready to defend yourself with an arsenal of evidence to prove contrary to the allegation made against you. In order to do this, you must know exactly what the investigation will cover and what the interviewers will question you about.
However, most of the time, it will be difficult to provide concrete evidence to defend yourself against any false or unfounded allegations, as they could have related to an in-person conversation or conduct between yourself and other colleagues. Something that commonly occurs is that once you are stood down from the Company, your access to Company records, emails, or any correspondence, is immediately cut off. This greatly limits your access to information that could protect or defend yourself.
You also need to make sure you are holding yourself to a professional standard. You need to make it very clear to the people carrying out the investigation that you are extremely willing to cooperate in the process of finding out the truth. Do not show emotion or aggression when answering questions. This is even when the allegations put against you are so outrageous and obviously a ploy to get you terminated from your job.
It is of the utmost importance that you know your rights and the proper procedure for conducting Workplace Investigations. Failures to meet the reasonable standard could result in your right to an unfair dismissal claim or a claim for adverse action in the Fair Work Commission. There are also other causes of action such as negligence. This is where the employer had a duty of care towards you to investigate matters appropriately, and they were unsuccessful in doing so. So read on to learn your employment rights.
Understanding workplace investigations can be tough. Always speak with an expert who's on your side to get the right advice. Our free hotline is open 7 days a week.
What REALLY goes on behind the scene?
In our vast experience, workplace investigations usually mean bad news for employees. Notice of a show cause action and being stood down is almost like a death sentence for your employment with that company.
An employer may engage in unfair management actions in the form of a genuine Workplace Investigation that does not have the proper basis for taking action against you or finding necessary evidence against you. There are many possible reasons why your employer is taking improper disciplinary action to push you out of the company. There are many ways for your employer to bias the investigation results in your favour.
Some common ways that employers skew the results of a Workplace Investigation against you is by covering up information that would disprove the allegation against you. This is done sometimes by removing access to your emails/computers and other company property to prevent you from properly defending yourself. Your employer may also pretend to hire genuinely objective and external investigators to conduct the Workplace Investigation. However, they may already be biased since they are also a paid service by your employer. If you know the allegation against you is completely false, but the employer still found you guilty of the alleged misconduct. This means either the employer did not conduct the investigation properly or they had already decided on your guilt before the investigation began. This is cause for action against your employer, particularly if they have reprimanded you. This is especially true if it’s unfair dismissal.
In some circumstances, you may have been denied access to the original complaint that formed the allegation against you to bring the Workplace Investigation in the first place. The employer may say they protect the confidentiality and identity of the complainant. However, often, the employer tries to prevent you from defending yourself in an attempt to blindside you. If an allegation of misconduct has been made against you, you have a general right to ask your employer to produce investigation records. This is once the workplace investigation has concluded. If the employer resists your request for these records, you may invoke the Fair Work Commission’s power pursuant to s 590(2)(c) Fair Work Act 2009 (Cth), to order the production of investigation summaries, interview records, and any relevant email communications. In Applicant v Respondent [2016] FWC 5006, the employee obtained all relevant records for their workplace investigation. The Respondent argued that these documents were confidential as they were subject to legal privilege, but the Commission ruled that these documents did not have that special privilege as documents are not immediately characterised in this way simply because they were provided to a solicitor for legal advice. Further, the Commission found that they were created in the normal course of Workplace Investigation. Therefore, they were subject to production under the Commission’s order.
Some employees experience extreme and unexplained delays during their Workplace Investigations – some of our clients have even reported being stood down for more than a year – and this may be cause for action against your employer for unfair Workplace Investigations. These delays during investigations may be a bullying tactic of the employer to push you out of the company. This is without dealing with your allegations properly. Or, they may be simply demonstrating how no interest they have in treating you fairly and appropriately as their employee. In Australian Rail, Tram and Bus Industry Union v NSW Trains [2016] FWC, the Commission found that there were unreasonable delays on the part of the Respondent when investigating an incident that occurred 11 months before the investigation concludes. If employers take such a long time to conclude a Workplace Investigation, they must properly justify their reason for the amount of time and delay. However, they must also remember that the Commission believes that ‘justice delayed is justice denied’.
More often than not, during the interview or meeting, the employer may not allow you enough opportunity to defend yourself against the allegations, or not take any notes as they are not interested in hearing your defence as they have already decided to let you go before providing you with a fair trial. In some circumstances, employers are as far as not even giving the employee in question an interview at all. Most employers have a reasonable policy to give any employee subject to a Workplace Investigation ample opportunity to answer the allegations in a fair investigation. The Commission has found in Cherunkunnel v Alfred Health [2015] FWC, that the only realistic way to reach an objective conclusion in a Workplace Investigation is by interviewing the employee which must form a part of the investigation. Otherwise, the Workplace Investigation will be heavily biased, and decide only one person’s side of the story.
In most instances, the employer always looks out for their interests first. They are more interested in avoiding vicarious liability for their employees’ misconduct and wrongdoing rather than discovering truth and fairness.
What can YOU do to protect yourself? And what can WE do?
As Someone who has been in this industry for decades..
We have many concerned and stressed recipients of show-cause actions and subjects of Workplace Investigations. They ask us how to protect ourselves from adverse treatment by their employers. Simply, how do you prevent your employer from unjustly dismissing you from employment?
The answer is? More often than not, if your employer has initiated a show cause action or Workplace Investigation against you on a harsh or unjust basis, your employment is most likely ending after the investigation process is over.
This is not to say that the final determination of a Workplace Investigation is never found in favour of an employee – sometimes, the allegations against the employee are dismissed and justice is served.
But, if you suspect your employer is not taking reasonable disciplinary action or instigating a Workplace Investigation on a proper basis, contact us immediately to discuss your options on how to best protect yourself. Better to be safe than sorry and know your rights before entering into any investigation! All hope is not lost as Australian law, procedure trumps substance. This means that if the employer fails to follow proper procedures, you may be eligible for some kind of compensation order.
This publication is general information that SHOULD NOT be relied upon as independent legal advice or as a substitute for legal advice. Call 1800-333-666 for a FREE CONSULTATION on your workplace dispute or situation.
