Workplace investigations are formal processes by which employers investigate allegations of serious misconduct by their employees. Typically, they are started because of another employee or a client has made a complaint.
They involve an investigator, who is often but not always an external person, gathering evidence of the misconduct and advising the employer as to whether the misconduct occurred.
Insist on your right to procedural fairness
All employees who are being investigated are entitled to procedural fairness. Procedural fairness means that:
- You should be told about any information that is adverse to your interests and which may be used by the investigator when reaching a final decision about whether you have engaged in misconduct.
- You should be given a reasonable opportunity to respond to that information and to tell the investigator your side of the story.
- The investigator and the person who is making a final decision about the misconduct or your employment should not be a person who was involved in or was an alleged victim of the misconduct.
If you are dismissed after a workplace investigation that was not procedurally fair, you may be able to commence proceedings against your employer for unfair dismissal.
Don’t rush
Employers sometimes give employees a very short period of time during which to prepare their response. This may be procedurally unfair. You should insist on a period of at least a few free days to prepare your response.
Respond in writing
You should make sure that your response is in writing. Even if you are invited to an interview, you should prepare a written response and send it to the interviewer in advance. It is important to produce a written record of your side of the story which can be relied on in any future proceedings.
Consider whether or not you can be stood down without pay
Employees are generally ‘stood down’, or asked not to come to the workplace, while they are being investigated. Most full time and part time employment contracts require employees to be paid their ordinary wages or salary even though they have been stood down. It is rare for an employer to have the power to stand an employee down without pay.
Think about your future
Sometimes, employees who are being investigated wish to move on to a new job or take the next step in their career. If this is the case, you should consider negotiating a smooth exit from the employer which leaves your reputation intact. Employers are often happy to do this, as it saves them the trouble, expense and legal risk associated with formal dismissal and investigation procedures.
Get legal advice
Being involved in a workplace investigation can be stressful, confronting and complicated. It is always best to have a helping hand. Get in touch with us to learn how we can help you achieve the results you want by calling us or emailing us.
The information contained in this post is current at the date of editing – 16 November 2023.