We have 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 are not alone.
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. If a finding
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 a workplace investigation?
Many employers have complaints and investigations policies which give employees certain rights. These include rights to:
- bring a support person to any meetings during the investigation;
- receive particulars of the complaint made against you from 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 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, they may be protected by implied terms in your employment contract or by the unfair dismissal provisions of the Fair Work Act 2009 (Cth).
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.
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 an investigation.
John Morrissey has been a practising Sydney solicitor for 30 years, and for the past 20 a sole practitioner and the principal at JFMLAW.
His main focus employment law, advising small to medium-sized firms and their employees of their rights and obligations.
For many years he was a lecturer at UTS to students obtaining Masters in Human Resources Management with a focus on performance management and creating a culture of delivery in workplaces. John has acted for a significant number of employers, not only in developing a performance based culture in the workplace but also solving particular problems that arise relating to unfair dismissal, contract disputes, improper use of intellectual property or other property as well as enforcements of restraints of trade.
John is very happy to speak to any employer who has an issue on a free of charge basis by a phone call. Please feel free to ring John at anytime up to 6pm most days.
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