An investigation should always have a proper purpose, and will usually fall within either of the following:
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 the basis of provable facts, and not unfairly subject possibly innocent employees to such action, based on hearsay or mere suspicions.
Before an employer even begins to contemplate 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.
A ‘proper’ and ‘lawful’ Workplace Investigations 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.
Some red flags indicating 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 content of the Workplace Investigation is pivotal, the procedure may be the fall of 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 letter of allegation, Jimenez v Accent Group T/A Platypus Shoes (Australia) Pty Ltd  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  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 in real and serious mental illnesses such as depression, anxiety, etc. It is a reasonable expectation of employers to appreciate the real probability of an employee suffering mental impairments directly from workplace stress, as they are held to a higher standard of being familiar with the workplace with 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:
The most important thing is to be prepared. Be completely ready to defend yourself with an arsenal of evidence to prove contrary to the allegation that is being made against you. In order to do this, you must know exactly what the investigation will cover and what the interviewers will question you on.
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 been relating 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, any correspondence, is immediately cut off – which 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 and make it very clear to the people carrying out the investigation that you are extremely willing to co-operate in the process of finding out the truth. Do not show emotion or aggression when answering questions, even when the allegations put against you are so outrageous and obviously a ploy to get you terminated from your job.
It is of utmost importance that you are aware of your rights and the proper procedure of conducting Workplace Investigations, as 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 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 better know your employment rights.
In our vast experience, Workplace Investigations usually mean bad news for employees. Notice of a show cause action and consequently being stood down is almost like a death sentence for your employment with that company.
Employers may take part in unreasonable management action that has no proper or found basis against you in the form of an ingenuine Workplace Investigation. There are many possible reasons as to why your employer is partaking in improper disciplinary action to push you out of the company – and there are many different ways for your employer to bias the investigation to result against 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, sometimes by removing your access to your emails/computers and other company property to prevent you from properly defending yourself. Your employer may also take on the pretence of hiring genuinely objective and external investigators to carry out the Workplace Investigation, but they may already be biased since they are also a paid service by the employer. If you know the allegation against you is completely false, but the employer still found you guilty of alleged misconduct, then you know either the employer did not conduct the investigation properly or they had already decided on your guilt before the investigation had begun. This is cause for action against your employer, particularly if they have engaged in adverse action by reprimanding you, especially if it’s in the form of 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 make the excuse that they are protecting the confidentiality and identity of the complainant, but often, the employer is trying to preclude you from being able to fully defend yourself in an attempt to blindside you. If an allegation of misconduct has been made against you, you have a general right to ask the employer to produce investigation records once the Workplace Investigation has concluded. If the employer is resisting 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, records of interview and any relevant email communications. In Applicant v Respondent  FWC 5006, the employee was successful in obtaining all relevant records to 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 this way simply because it was provided to a solicitor for legal advice. Further, the Commission found they were created in the normal course of the Workplace Investigation and therefore 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 having been 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 without having to deal with your allegation properly, or simply just showing how little interest they have in treating you fairly and properly as their employee. In Australian Rail, Tram and Bus Industry Union v NSW Trains  FWC, the Commission found that there were unreasonable delays on the part of the Respondent when investigating into an incident that had occurred 11 months prior to the conclusion of the investigation. If employers were to take such a long time to conclude a Workplace Investigation, they must properly justify their reason for the amount of time and delay but also bear in mind that the Commission takes the stance that ‘justice delayed is justice denied’.
More often than not, during the interview or meeting, the employer may not give 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 made the decision to let you go before giving you a fair trial. In some circumstances, employers go as far as not even giving the employee in question an interview at all. Most employers have a reasonable policy in which they must give any employee that is subject to a Workplace Investigation to have ample opportunity to answer the allegations in a fair investigation. The Commission has found in Cherunkunnel v Alfred Health  FWC, that the only realistic way to reach a fair 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 be decided upon only one person’s side of the story.
In most instances, the employer will always look out for their interests first, and they are more interested in avoiding vicarious liability for the misconduct and wrongdoings of their employees rather than finding the actual truth and carrying out fairness.
We have many concerned and stressed recipients of show cause actions and subjects of Workplace Investigations ask us how to protect themselves from being adversely treated by their employers. Simply, how do you prevent you employer from unjustly dismissing you from your employment?
The answer? 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 coming to an end after the investigation process is over.
This is not to say that the final determination of a Workplace Investigations is never found in the favour of an employee – sometimes, the allegations against the employee are dismissed and justice is served.
But, if you have a suspicion that your employer is not taking reasonable disciplinary action or instigating a Workplace Investigations on a proper basis, contact us immediately to discuss your options on how to best protect yourself. Better to be safe than sorry and to know your rights before going into any investigation! All hope is not lost either as, under Australian law, procedure trumps substance, meaning that if the employer fails to follow proper procedure then 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 to get a FREE CONSULTATION on your workplace dispute or situation.
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