What is a workplace investigation?
A workplace investigation is a process by which employers investigate a complaint made by one of their employees who had allegedly engaged in workplace misconduct.
Do you know your workplace investigation employee rights?
Many employers have complaints and investigations policies which give employees certain rights.
These include rights to:
- receive particulars of the complaint made against you from your employer in writing before you are asked to discuss it with your employer;
- receive a sufficiently detailed summary of all the adverse information that may be relied on win determining whether or not you engaged in misconduct;
- a reasonable time to respond in writing to the complaint and the summary of the adverse information;
- have responses to the complaints made against you be considered before a final decision is made;
- bring a support person to any meetings during the investigation;
- have the investigation conducted by a person who is not connected with the complaint and is not actually or apparently biased; and
- have the final decision about whether you engaged in misconduct made by a person who is not connected with the complaint and is not actually or apparently biased.
If your employer does not have a policy containing these rights, you may still be protected by implied terms in your employment contract or by the unfair dismissal provisions of the Fair Work Act 2009 (Cth).
On the other hand, you should also note that courts have found that an employer has ‘managerial prerogative’, which gives them the right to make decisions on how to manage their business. This includes an obligation that employees comply with the lawful and reasonable directions of the employer. A reasonable direction may be your employers request to attend a meeting.
What should you put in a response to a complaint?
A good response to a complaint contains:
- A detailed chronological factual summary of the events on which the complaint is based. This component of your response should outline 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. It is a good idea to have a lawyer help you draft this document.
- 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.
If you are confronted about complaints being made about you before you have been notified of those complaints, you should indicate that you will respond to concerns after they have been put into writing to you and you are provided with a reasonable opportunity to consider and understand them.
We recommend contacting JFM Law as soon as you have been notified of a complaint being made against you. It is important to get legal advice on what your rights are and what strategy should be implemented.
Does my employer have the right to suspend me during the workplace investigation?
It is common for employees to be suspended or ‘stood down’ from their active duties during the course of an investigation. Only a limited range of employment contracts give employers a right to suspend employees without pay. Generally speaking, your employer has a right to stand you down. Whilst you are stood down your employer is required to make payments to you regarding your normal base salary.
How can JFM Law help?
We provide sensitive and strategic advice to all employees who are being investigated for misconduct. We have a track record of achieving pragmatic results which allow the employee to move on with their career and get back to what they are doing best. Contact JFM Law on (02) 9199 8597 for a no obligation chat. If you would rather get in contact through email, send your question through or by email at wehelp@jfmlaw.com.au
The information contained in this post is current at the date of editing – 03 April 2024.