We’ve noticed a significant increase in executive employees being subject to complaints about their conduct, resulting in a workplace investigation. If you have recently received a complaint letter, you’re not alone.
Many of these complaints come from subordinate employees. Sometimes justified, sometimes not. Often they arise when you commence a performance management process for a direct report.
What is a workplace investigation?
A workplace investigation is a process whereby your employer investigates whether you have engaged in inappropriate conduct. They often result from a complain against you by one of your workplace colleagues. If a finding is made against you, you can face termination, or even worse.
What are your rights during a workplace investigation?
Many employers have a complaint and investigation policy that sets out the rights of the person complaining and the person responding. As the person responding to the complaint, your rights should include:
- Being able to bring a support person to any meetings during the investigation;
- Receiving complete details about the complaint made against you;
- Receiving a sufficiently detailed summary of all the adverse information that may be relied on when determining whether you engaged in the conduct;
- A reasonable time for you to respond in writing to the complaint;
- Having the investigation conducted by a person who is not connected with the complaint, and is generally unbiased or independent; and
- Having the final decision about whether you engaged in the conduct made by a person who is not connected with the complaint, and is not actually or apparently biased.
Even if your employer does not have such a policy, these rights will nevertheless be inferred by common law rules relating to your employment, the terms of your employment contract, and by the unfair dismissal provisions of the Fair Work Act 2009 (Cth).
How should you respond to the complaint?
A good response to a complaint contains:
- A detailed factual summary of the events on which the complaint is based, from your perspective. This should be in a chronological order. This part of your response outlines what you saw, heard and did. You should refrain from making emotional statements or legal arguments in this section.
- A legal analysis outlining whether or not what you did (or did not do) constituted misconduct in your view. It is a good idea to have a lawyer help you draft this section.
- A personal statement about how you feel about the complaint, your commitment to your employer and anything that you are prepared to do to resolve it, including an apology or a mediation if it is appropriate to do so. You should also have this section reviewed by us to ensure that you are not saying anything that is unduly prejudicial.
Will I be suspended during the workplace investigation?
It is common for an employer to suspend your active duties and stand you down during the course of an investigation. Generally speaking, you have a right to receive your normal base salary while you are stood down. Only a limited range of employment contracts give employers a right to suspend employees without pay. We can review your contract to see what your rights are in this regard.
What questions should I be asking myself?
It is important to take a strategic approach to workplace investigations. You should ask yourself:
- Do I want to continue working for the employer? Has the relationship between me and my employer been damaged irreparably? If the answer to the first question is ‘no’, or the answer to the second question is ‘yes’, you may need to think about negotiating an exit arrangement. If this is the case, you should get some legal advice to ensure you are doing it from a position of strength.
- What practical steps can I take to resolve the real issues that prompted the complaint? Sometimes, a proactive solution that allows the person running the investigation to save face in front of the complainant can resolve an investigation and minimise the longer terms consequences for you.
What to do next
Call us on (02) 9199 8597 or email us for a no-obligation and confidential chat.
We will provide you with practical and strategic advice to get you the best possible outcome from the investigation. This may be a favourable exit from your current employer, or a speedy return to work. We have a track record of achieving pragmatic results, that allow executives to move on with their career and get back to what they do best.
The information contained in this post is current at the date of editing – 16 November 2023.
