Have you been wrongly accused of misconduct at work?

How you can respond

This firm helps people to respond to unfair workplace misconduct allegations.

Being accused of misconduct at work can come as a shock. Even more shocking can be the idea that you suddenly face an accusation that may be unfair or fabricated.

The thought that serious allegations are made – and yet can be wrong in some way – makes people uncomfortable. For this reason, anybody facing a misconduct complaint needs to understand how to respond.

Taking the time to understand your options and how to respond to a misconduct allegation can be a good first step. However, as with any legal issue, there is no substitute for getting professional legal advice as early as possible. Without advice, people can sell themselves short by not doing all that can to contest an unfair allegation.

Why unfair allegations may arise

There are numerous forms of misconduct that may be of legitimate concern to an employer. Issues that arise outside of the workplace or past ‘office hours’ can still form the basis of a complaint. Examples of misconduct include:

• Workplace bullying
• Sexual harassment
• Discrimination
• Work health and safety breaches
• Code of conduct breaches
• Misuse of workplace assets
• Social media misuse
• Being intoxicated at work
• Confidentiality breaches
• Corrupt conduct

While there are numerous ways a misconduct allegation can legitimately arise, complaints that are false or unfair also happen. It is not always a case of the accuser lying about events. People can wrongly label something as ‘misconduct’, often because the context of an event may be misunderstood. There are, however, situations where people feel an improper motive is behind an allegation.

Some people can feel that their employer or manager is unfairly singling them out or treating them differently. Others may question the timing of misconduct allegations being raised, which may follow changes in their personal life, such as a pregnancy announcement or a request for flexible working arrangements.

There are many different approaches a person may take when faced with a complaint relating to misconduct at work. The reasons for this are obvious. Not all allegations are the same and individual circumstances need consideration.

Responding to a workplace misconduct complaint requires proper analysis of all the relevant facts, an understanding of the workplace environment, and an awareness of the applicable laws and policies.

If you need to respond to a misconduct allegation at work, there are six steps that can help you to do so effectively:

1. Review relevant laws and policies
2. Gather supporting evidence
3. Identify what you accept or reject
4. Consider your rights and options
5. Get advice from a lawyer
6. Respond calmly and purposefully

1. Review relevant laws and policies

If you are responding to a misconduct allegation, it is important to review the applicable laws and policies. It is through such frameworks that the issues should get decided. Law, policies, and procedures can also allow you to understand what may be fair or appropriate in a workplace investigation or disciplinary process.

In Australia, there can be real consequences for employers who fail to afford procedural fairness to their employees. It compromises the ability of someone accused of misconduct to respond to the allegation. Unfair processes can see disciplinary decisions reversed, and compensation ordered.

Generally, a person facing a misconduct complaint will need adequate details of the allegation. Typically, an employer must also provide information or evidence relevant to the allegation that is sufficient to enable an opportunity to respond. Without this, a respondent to an allegation may not be in a position to fairly respond.

The failure to understand relevant laws and policies that apply can see people sell themselves short. They may not appreciate their options to challenge an unfair process. Getting advice from an employment lawyer can help to ensure procedural flaws in a process get the attention they deserve.

2. Gather supporting evidence

If relevant evidence is not uncovered, an unjust result may prevail.

In responding to a misconduct accusation, you may encounter some hurdles in gathering evidence. For example, you may have been stood down from work. Also, it is common for employers to direct employees to keep workplace investigations and disciplinary processes confidential. So, it may not be so simple to speak to your colleagues. As such, gathering the available evidence can seem easier in theory than it is in practice.

To gather relevant evidence, it is necessary to know what rights and options you may have to get it. Moreover, it is critical to know what obligations exist for employers to consider it.

Evidence relevant to a response may go beyond simply addressing the allegation. It can also relate to evidence by experts, such as doctors, psychologists, or counsellors. Understanding how certain evidence may be relevant is not always obvious. The legal issues associated with certain forms of evidence can also be complex.

Employers are not expected to have the skills of police or lawyers in dealing with evidence. That said, if you understand the reasonable expectations they must meet, it can help you frame your response to a misconduct allegation at work.

3. Identify what you accept or reject

Identifying what you accept or reject sounds simple. It requires methodically working to identify the real issues in dispute.

Narrowing the points in dispute can be a source of strength. Yet, it may also be necessary to raise new issues. Sometimes, there are things that may have contributed to the issues, or provide necessary context to alleged events. Such issues may be personal to the employee, or an external factor that needs consideration.

To accept or reject issues, it is crucial to understand what information, witnesses, or evidence exists or is relevant. If you are an executive or employee facing a misconduct allegation, this ensures you can see the basis for the allegation. For instance, it may expose that incomplete or inaccurate information has been supplied to support the allegation of misconduct.

Identifying what you accept or reject is an essential step when responding to misconduct complaints. Balancing strong challenges with reasonable concessions can be difficult. Decisions of this nature are best made against the applicable legal principles.

4. Consider your rights and options

You may have many choices to make when faced with a workplace misconduct allegation. Yet, it is likely an unfamiliar situation, may involve short timeframes, and is often stressful. In such circumstances, people do not always fully consider their rights and options. 

A workplace misconduct allegation can make it hard for an executive or employee to see how they could possibly return to their workplace. While they may wish to be vindicated, they may also feel uncertainty about the prospect of returning to work. Successfully defending the allegation only to return to a difficult environment might ultimately be counterproductive. In such circumstances, hiring a lawyer to engage in ‘without prejudice’ negotiations may open a different path. It can allow an employee to reach a confidential settlement with their employer, allowing the employee to move forward in a different direction, while at the same time reducing reputational and financial risks.

It prompts this question: ‘Why would an employer negotiate with an employee facing a misconduct allegation? The reasons employers may negotiate are not always obvious. The legal, financial, and reputational risks employers can face are complex. Reducing conflict through negotiation can have benefits for all concerned.

A confidential settlement can allow an employee to resolve their issues quickly, help to protect their reputation, and provide the commercial means to move forward. For many people, avoiding potentially lengthy disputes is preferable, particularly if it can lead to fast and secure outcomes.

Considering your rights and options is essential before responding to a misconduct accusation. It can focus attention on what may be the ideal outcome in the situation, and what is actually achievable.

5. Get advice from a lawyer

Getting advice from a lawyer can have a number of benefits. It can help to identify the potential risks and benefits of different options. Moreover, it can help people to respond strategically to the allegation.

Dismissal from a workplace can have far-reaching consequences (Why your decisions matter). It can impact your reputation, livelihood, and financial security. For this reason, it is prudent for people to get legal advice before settling on how to respond to a misconduct complaint at work.

Tailoring every response to the specific circumstances of the case is always necessary. There is no ‘one size fits all’ approach to responding to an accusation relating to misconduct connected to the workplace. An experienced lawyer can draw on their knowledge of the law and past cases that may have involved similar issues.

If you face a misconduct allegation, there is no substitute for getting advice from a lawyer. It can help to translate your options into an effective strategy. It can make a real difference to the outcome.

6. Respond calmly and purposefully

It is necessary to respond calmly and purposefully to any misconduct allegation you face. This means taking account of the issues at stake and the dangers of any missteps. For an individual, what may be at stake may be more than their immediate job, it may affect their broader career and reputation.

Do you need to fully contest the allegations you face? Or do you think the response requires more nuance, and perhaps some careful concessions? Or, is negotiating a confidential agreement with your employer that allows you to move forward in your best interests? A calm and purposeful response will look different to different people and this firm can help you to navigate the issues.

People can underestimate how much work it takes to answer misconduct allegations. It may require you to address multiple incidents, each of which may carry disputed context or involve multiple sources of information. Understanding what may be necessary to raise in order to properly defend yourself can be difficult. This is particularly so if you feel the situation is unfair or unreasonable, and that that should be obvious to your employer.

Even with a perfectly rational response, an unfair decision may result. It may be disappointing, even devastating. Getting appropriate legal support can make a real difference. Other supports include employee assistance programs (EAP), doctors, and counsellors. With a proper strategy, it is possible to plan for different contingencies, defend your rights, and advance your interests. This firm helps to defend executives and employees who face an unfair situation at work and wish to act against it.

What this firm does

Anderson Legal defends people facing unfair workplace misconduct allegations.

Anderson Legal helps executives and employees to respond to unfair workplace misconduct allegations. As such, this law firm can help you to contest unfair allegations and processes, defend your legal rights, and advance your interests.

This law firm helps executives and employees across Australia by:

• providing advice and guidance;
• drafting responses during investigations;
• negotiating confidential settlements with employers; and,
• litigating disputes in courts and tribunals.

If you are considering whether or not you should get help in responding to a misconduct allegation, particularly one you feel is unfair, it is critical to understand what this firm does and how it may benefit you.

Your response to a misconduct allegation is your opportunity to persuade your employer why you should not face disciplinary action or dismissal. However, it can also be an opportunity to negotiate with your employer about ending your contract on commercial terms that are acceptable to you and allow you to move forward more securely and without any adverse findings.

Experience shows employers (even with the benefit of advisers) quite often fail to afford procedural fairness, comply with their own policies and procedures, or take into account relevant information.

The question is: How seriously are such flaws taken by decision-makers? The answer may depend, to some degree, on the authority of the person raising the issue. For this reason, having the support and authority of a lawyer on your side can be critical.

The ‘principle of authority’ describes the tendency of people to agree or comply with those seen as having authority on a subject. Numerous studies have shown the impact of this ‘principle of authority’ on decision-makers. In the Harvard Business Review, Dr Robert Cialdini described the essence of the ‘principle of authority’ in this way:

Two thousand years ago, the Roman poet Virgil offered this simple counsel to those seeking to choose correctly: “Believe an expert.” That may or may not be good advice, but as a description of what people actually do, it can’t be beaten.

It follows that getting a lawyer can assist you to have your voice heard. However, the actual value of a lawyer should run deeper. While knowing the law is fundamental for a lawyer, so is their expertise as an advocate.

This firm helps people to better understand their options and provides advice on how the scales can be tipped back in their favour. At every point, you will see its advocacy efforts deployed in your interests.

Where people can go wrong

People can be mistaken about when a lawyer may prove most useful to them.

It is not uncommon to feel uncertainty, doubt, and stress upon being notified you have been accused of misconduct at work. In fact, it is normal, particularly for people who feel they are being wronged by the allegation or claim.

It is also not uncommon to see people making mistakes about how to respond and the scope of the task. People can view the correctness of their position as self-evident. It can stop them from reflecting on their options in responding. It can see people underestimate how much work there is in formulating a compelling response, and just how serious the consequences may be if the findings do not fall in their favour.

Some people think they will engage a lawyer only “if the worst happens”. That is, they see a lawyer as someone who ‘reacts’, rather than ‘prevents’. The truth is, it often becomes harder, not easier, to change the outcome the farther things are along the road. For that reason, people facing workplace challenges are always best advised to get legal advice as soon as possible. As it is with medicine, prevention is better than a cure.

Hiring a lawyer to help you can be easier than you think, and the timing can be important. How you respond to a misconduct allegation at work can have a range of implications, including dismissal (Why your decisions matter). However, if you are dismissed, it is unlikely you will be reinstated if you challenge the decision. Outcomes from conciliations in the Fair Work Commission show this in raw detail:

Whether through conciliation or contested processes, experience shows reinstatement is relatively rare. Depending on the reasons for the dismissal, termination of employment can also make it harder to find a new job. Quite often, the earlier you engage a lawyer to help you when facing a misconduct accusation, the more options you will have available.

Why your decisions matter

Unfair workplace workplace allegations can have far-reaching consequences.

There are a number of potential legal consequences that can follow from misconduct allegations, including:

• Workplace disciplinary processes by employers
• Professional disciplinary action by regulators
• Civil claims brought by those impacted by misconduct
• Criminal charges in some circumstances

Many people do not stop to consider how a misconduct allegation may attract the attention of regulators, tribunals, and courts. It highlights why it is prudent for people facing issues of this nature to get legal advice as early as possible.

Employers have certain responsibilities in responding to misconduct, particularly where it may affect the health and safety of others. In not understanding the advice employers may receive about their own obligations, people facing an allegation can misinterpret the steps an employer takes to respond to an accusation. These issues can make it difficult to face accusations alone and without the benefit of advice and support.

If you are subject to a workplace investigation or disciplinary process and disagree with the outcome, you may seek to use your responses from those processes as part of a legal claim. For example, an unfair dismissal claim or general protections claim. This can be a double-edged sword. While a well-argued response may assist you, the opposite may be true where your response was inadequate. In such cases, it may be the employer who wishes to rely on your response.

Responding to a misconduct allegation requires proper analysis of all the relevant facts, an understanding of the workplace environment, and an awareness of the applicable laws and policies. No matter where you are in Australia, Anderson Legal can help you to properly respond to a misconduct allegation you face in the workplace.

About Author: Andrew Anderson

Andrew Anderson has significant experience assisting people seeking help in responding to misconduct allegations. He assists executives and employees across Australia by:

• providing advice and guidance
• drafting responses during investigations
• negotiating settlement agreements with employers
• litigating disputes in courts and tribunals