Biased Workplace Investigation how to respond

A workplace investigation occurs when requested to determine whether or not Australian workplace laws have been breached. Such investigations can be requested by either the employer involved or an employee. They are conducted either by a private workplace investigator retained by the employer  or by the Fair Work Ombudsman (FWO). Biased Workplace Investigation how to respond is an issue many employees have to face.

This Article will discuss the events that can trigger a request for a workplace investigation. It will also discuss the process involved and the remedies available to a requesting party at the end of the workplace investigation. First, why would anyone request a workplace investigation?

What Is the Purpose of a Workplace Investigation?

A workplace investigation is an externally conducted review of alleged workplace conduct that may violate Australian employment law. Such investigations can be requested by any party within the workplace. They often result from complaints of workplace harassment, bullying, sexual impropriety, unfair dismissal or constructive dismissal, suspension, as well as other bases.

The statutory purpose of a workplace investigation is to settle the legal question of whether a law has been violated. When the workplace investigation has been requested by an employer, the underlying purpose is generally to inoculate itself from future claims of unfair dismissal or sacking after it terminates a worker’s employment.

It can be a preemptive step for an employer, in other words. In this case, that a workplace investigation is occurring is probably a bad sign for the employment longevity of the worker involved.

However, in terms of the letter of the law, the workplace investigation will determine:

• Whether any law applies to the situation and people involved;
• Whether that law, if so, has been properly followed;
• And, if not, what remedies are available to the requesting party.

Generally, the purpose of the workplace investigation is to either fix a problem or to obtain legal or procedural “cover” for an action to be taken—such as the employees dismissal.

What Events Can Trigger a Workplace Investigation?

A workplace investigation is triggered when it is requested, as noted above. However, the Fair Work Ombudsman (FWO) will investigate only where the allegations are particularly serious, usually regarding the underpayment of award wages. Or affect a number of people rather than only you, or where the affected persons are vulnerable in some way.

Alternatively, employers usually obtain the services of private workplace investigators. This way they can control the process. The purpose of these retainers is generally to provide a paper trail documenting the employer’s “proper” process in dismissing a worker. That said, the sorts of events that can trigger a request for a workplace investigation include allegations of:

• Bullying;
• Discrimination;
• Fraud or theft;
• Sexual or other harassment;
• Other forms of misconduct.

What Process Should a Workplace Investigation Follow?

When a workplace investigation is conducted by an FWO Fair Work Investigator (FWI), the inspector is first appointed to the matter by the FWO. Initially, the FWO will collect evidence as required for an adjudication of the facts of the matter alleged.

This will be accomplished, initially, through a request for documentation from the parties involved. When this doesn’t bear fruit, FWIs will compel turnover of the requested documentation through service of a “Notice to Produce.” FWIs, in fact, enjoy a number of coercive powers. These include the right to enter a workplace for the purpose of their investigations and the right to request participation in recorded interviews and other investigatory procedures.

Failure to comply with a Notice to Produce carries a number of possible penalties, including:

• Fines of up to $133,200 for individuals or $666,000 for companies;
• Additional fines of $13,320 for individuals and $66,000 for companies for failures to provide records or documents, providing false or misleading documents, or intentionally obstructing or hindering FWIs or other officials.

Based on the information retrieved by the FWIs, the FWO will decide whether a workplace law has been violated. If so, it will then consider the possible remedies available. The FWO attempts to explain the reasoning for its decisions—or so it claims.

Resolution of the workplace investigation

Generally, the resolution of a workplace investigation will rest on the evidence uncovered and the seriousness of the violation in question. A lack of cooperation of the parties involved can also influence the weight of the FWO’s recommended resolution. Once concluded, the investigation may result in one of several different possible outcomes.

It may be the case that no further action is required, for example. This can result when, say, the employing company has gone out of business or there is not sufficient evidence to support a conclusion that a workplace law was broken.

Alternatively, the FWO may decide upon a more punitive outcome.

These outcomes include:

• Issuance of a Contravention Letter explaining the transgression and the steps required to remedy it.
• Issuance of a Letter of Caution, or formal warning.
• Issuance of a Compliance Notice explaining the legal breach, the required remedy, and the further penalties that will be levied if compliance does not follow. (These further penalties include litigation.)
• Issuance of an Infringement Notice, necessitating payment of a fine on the spot.
• Negotiation of an Enforceable Undertaking, or written agreement between the FWO and the employer requiring the employer to admit to the wrongdoing and to commit to remedying steps.
• Formation of a Compliance Partnership between the offending employer and the FWO. Within a Compliance Partnership, the employer commits to ensure properly functioning processes and systems for a 2-3-year period and a public demonstration of its ongoing compliance with workplace laws.
• Referrals to small claims court or litigation.

These last two possible outcomes seek judicial redress for the employer’s workplace legal violations. Normally, this redress takes the form of a money damages awards to the affected employee or employees. However, additional remedies are available also, subject to the courts’ discretion.

Prior to the litigation phase of a workplace investigation, at any rate, a party who doesn’t agree with the FWO’s conclusions can request a review of the investigation or preemptively dispute the outcome in court.In other words, the workplace investigation process should unfold according to an objective review of the facts of the matter, as supported by documentary and other verifiable evidence.

Penalty to apply

Once concluded, the investigation should result in an exoneration of the subject of the complaint where warranted or an appropriately severe penalty. A workplace investigation should be conducted and concluded in full compliance with the Fair Work Act (2009) and other pertinent legislation.

Who Are These Fair Work Inspectors Exactly?

So who, exactly, are the Fair Work Inspectors, or FWIs? And what exactly can they do in the course of a workplace investigation? The FWIs are government officials empowered to monitor and promote compliance with Australian workplace law.

They investigate workplace complaints in particular but also engage in a variety of other activities designed to promote workplace law. For example, FWIs are empowered to conduct education campaigns within industries or regions to education employers and the public as to Australia’s legal workplace requirements.

However, with regard to workplace investigations, the FWIs are specifically tasked with:

• Auditing workplace compliance;
• Investigating complaints of workplace law violation, as noted above;
• Assisting in resolving complaints;
• Enforcing workplace law.

What breaches of workplace law are FWIs empowered to investigate?

• Wage and entitlement underpayment;
• Record-keeping requirements related to pay slip and time records;
• Unions’ right of entry;
• Discrimination;
• Freedom of association issues;
• Adverse action, including termination, sacking, coercion, and misrepresentation of workers’ rights;
• Parental Leave entitlement breaches;
• And more.

Interfering with a FWI or obstructing a workplace investigation is prohibited by law. Barring entry to workplace premises by a FWI or engaging in other such hindering action will increase the penalty levied against an employer, should a violation of workplace law be found.

What Does a Workplace Investigation Mean to an Employee?

If you, as an employee, are the focus of a workplace investigation, this can have serious consequences for your continued employment. If a co-worker has complained that you have engaged in harassment, bullying, or other unlawful behavior, you may indeed find yourself at the center of a workplace investigation. Generally, this is not good news for you.

Employers have broad discretion under law to reasonably investigate workplace issues. When the FWO steps in to conduct a workplace investigation, it will generally follow the process outlined above. However, from the standpoint of the employer, there is no firm rule to which the employer must adhere in investigating the behavior of its own employees.

The only guiding principle in play with regard to employers is the standard of procedural fairness to which they must adhere in investigating the behavior of workers.

What Is Procedural Fairness In a Workplace Investigation?

Employers are obligated to conduct workplace investigations—whether via the FWO or a private workplace investigators—according to standards of procedural fairness.

What does this mean?

During a procedurally fair workplace investigation, the employee who is the focus of the investigation:

• Receives prior written notice that a workplace investigation is underway;
• Receives specific information regarding the basis of the investigation;
• Receives written allegations that do not suggest pretermination of the truth of the matter;
• Is notice of the allegations in a timely manner sufficient to allow preparation of a response;
• Is allowed to bring a representative or other support person to meetings regarding the investigation;
• Has his or her response or explanation properly considered before a decision is rendered.

Further, employers are arguably obligated to proceed under a duty of care also.

Employers’ duties of care include:

• Sympathy toward all parties involved in the workplace investigation;
• Updating you and other parties regularly regarding the progress of the investigation;
• Properly explaining all steps and decisions taken in the course of the investigation;
• Refraining from favor or bias in the course of the investigation;
• Guaranteeing confidentiality, including reprimanding other employees engaging in gossip;
• Ensuring that all parties have access to the employer’s counselling service.

Failure to adhere to these duties may mean that a workplace investigation is biased. Worse, such failure could indicate that the workplace investigation itself is a mere pretext for your eventual dismissal.

Are Employers Biased When Conducting Workplace Investigations?

Not all employers are biased toward a particular end result when conducting a workplace investigation. However, all employers are primarily focused on one thing alone: ensuring that the employer is free from any legal or financial liability moving forward from a complaint.

If this means that terminating your employment is the safest course of action for the employer, that is the likely path to be chosen by the employer. This does not mean that your employer is naturally biased toward you, necessarily. It simply means that your employer is looking out for #1: itself. When an employer is not an individual but a corporate enterprise, this is what it does organically.

On the other hand, it may be the case that you’ve blown a whistle on your employer in the past or ruffled feathers in some other manner. It is possible that your employer is genuinely biased against you and prefers a certain outcome to its workplace investigation. (this may lead to a general protections claim).

How will you know when this is the case?

First, if the underlying complaint made against you is a result of management action, or the result of some level of employer participation, this would be a strong indication that the investigation is pretextual. If, during the course of the investigation, your employer covers up or “misplaces” information or documentation that is favorable to you, this is another strong indication that bias is in play.

If you’ve been denied the right to review the original complaint or to understand the details of the allegations brought against you, your workplace investigation may likewise be biased. Has your employer retained a private workplace investigator rather than calling upon the FWO?

Undue delays in process, untimely response time allowances, one-sided meetings or interviews in which you are not allowed to present your case or facts—all of these and more are indicative of employer bias in a workplace investigation. This will, of course, not always be the case. However, as noted, even where an employer endeavors to conduct a procedurally fair workplace investigation, the truth is always a secondary priority.

The first priority for your employer is always responsibility avoidance.

How To Handle a Biased Workplace Investigation

Whether or not you believe a workplace investigation will be biased against you, your first order of business is to be prepared.That is, when subjected to a workplace investigation, it is vital that you get your ducks in a row. First, you must ensure that you understand what the allegations against you may be. If the investigation is procedurally fair, you will have been provided these in specific detail and in writing. Armed with this information, you will be able to take the next steps in defending yourself.

If you have not received written, specific details of the charges made against you, it will be more difficult to do this. Instead, you will need to exercise your rights as guaranteed by law, including requesting a FWO workplace investigation of your own, if faced with a private investigation.

If you do have those detailed allegations in hand, it is important, first, that you conduct yourself professionally. Communicate in a calm and reasonable manner with those involved, in writing, and collect and maintain copies of those communications in a secure, offsite location. You must gather all of the documentary and other evidence with which you will defend yourself against the allegations.

If you’ve been suspended from the workplace pending the outcome of the investigation or have otherwise been cut off or electronically segregated from company communications, this will be more difficult.Do the best you that you are able to organize your evidence and to present it to the investigator in a readable manner that bolsters your case.

Bias is so strong

If the bias is so strong that you are simply shut out of your own defense, it may be time to contact an unfair dismissal employment representative for assistance and representation.

Do I Have Privacy Rights During a Workplace Investigation?

Employers are obligated to respect your privacy rights during workplace investigations. However, there are limits to the privacy rights that you, as an employee, can reasonably expect within the employer’s workspace.

Remembering that your employer’s first priority is, as noted, to protect itself, it is in your employer’s best interest to ensure that office gossip and other chit-chat not stray into breaches of your right to maintain confidential information or into the vicinity of defamation.

An employer who fails to control internal communication regarding the facts and allegations of the workplace investigation may be sued for defamation. Likewise, surveillance of you, your workspace, your office computer and telecommunications equipment also potentially leaves an employer open to legal challenge.

However, if your employer has clearly outlined its right to conduct such eavesdropping or surveillance in its employee manual, this may not be a privacy right that is as strong as it sounds for you. Nevertheless, generally speaking, you do enjoy at least limited privacy rights during workplace investigations.

This is particularly true if the allegations against you are baseless as defamation requires that information disseminated by untruthful.

Can I Be Suspended or Terminated Following a Workplace Investigation?

You can be suspended for the period of the investigation. This is often a step taken by employers to ensure that the investigation may be carried out without interference by the subject employee.

However, one person’s “interference” is another person’s “right to defend.” Your employer may suspend you from your employment during an investigation in order to complicate your right to defend yourself, in other words. When an employer suspends you during a workplace investigation, the employer is often actually attempting to accomplish these goals:

• To segregate you from the evidence that you need for your defense;
• To ensure that you are unable to communicate with co-workers;
• To “get on with business” without the stress of an aggrieved presence in the office; 
• To ensure that complaining employees are not harassed while the investigation proceeds.

You should be suspended in writing, via letter from your employer.

The suspension letter should specify:

• The basis for the suspension;
• The duration of the suspension;
• Your rights and obligations during the suspension;
• A statement that the suspension is not a presumption of your guilt.

What are your rights while you are suspended? You maintain the right to procedural fairness, as described above.

Thus, you should expect that you will not be terminated while the workplace investigation is ongoing. However, if the outcome of the investigation indicates that you the allegations against you are merited, you may be terminated as an ultimate consequence. Until that happens, though, you should continue to expect fair treatment from your employer.

Workplace Investigations: The Bottom Line

The bottom line with regard to workplace investigations is that you should not encounter bias while the discussion is in process. Regardless, it happens. If you believe that you are the subject of a biased workplace investigation or are not receiving the procedural fairness or duty of care that you are owed, it is important that you seek legal advice as quickly as possible.

If you seek legal assistance only after the investigator or FWI has completed his or her report, it may be too late to influence with the outcome of the investigation. Instead, contact an unfair dismissal employment representative at the first indication that your rights are not being respected during a workplace investigation. This will maximize the odds that even an initially biased workplace investigation is not the end of your career.

Conclusion to Biased Workplace Investigation how to respond

Contact us now to schedule a conversation if you are the subject of a workplace investigation in which may be biased or procedurally unfair. Note that this Article is provided for general educational purposes and general information that SHOULD NOT be relied upon as independent legal advice or as a substitute for legal advice. AWNA are not lawyers. We are proud of our staff and the outcomes they get for our clients.

Any thing to do with the Fair work regime, toxic workplaces, serious misconduct call us immediately.

Call 1800 333 666, free confidential advice

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