5 things all executive employees should know about how to handle complaints and the workplace investigation process:

What is a workplace investigation?

A workplace investigation is a process by which employers investigate whether one of their employees have engaged in misconduct. They are often commenced by one of the employee’s colleagues making a complaint or the employer holding concerns regarding the employee’s conduct when carrying out their work duties.

For more information about the steps associated with workplace investigations, have a look at the Workplace Investigations Guide in our Managers Tool Kit:

What are your rights during the workplace investigation process?

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, such as requiring that an employee answer questions in relation to allegations made against them or concerns held by the employer.

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.
  • 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 and you have had a reasonable time to consider and understand them.

We recommend contacting JFMLAW as soon as you become aware that an investigation process may be commenced. It is important to get legal advice on what your rights are and what strategy you should use to best respond to any complaints or allegations.

Will I be suspended during the workplace investigation?

It is common for employees to be suspended or ‘stood down’ from active duties 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.

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 ‘yes’, you may need to think about negotiating an exit arrangement. If this is the case, you should get some legal advice to ensure that 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.

How can JFMLAW help?

We provide sensitive and strategic advice to executive employees who are being investigated for misconduct. We have a track record of achieving pragmatic results which allow executives to move on with their career and get back to what they are doing best. Get in touch with us on 02 9331 0266 or by filling in a contact form below to arrange a conversation about how we can help you to respond to a workplace investigation.