Employee rights are important when dealing with workplace investigations

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Employee rights in workplace investigations

Employers have obligations to employees

In Australia, employees facing workplace investigations have a number of rights or are owed a number of obligations. For someone responding to an allegation at work, understanding these issues can be important to deciding how to navigate a workplace investigation.

While it is possible to identify common employee rights in workplace investigations, such rights are alterable. Various laws, modern awards, enterprise agreements, employment contracts, as well as internal policies and procedures can all impact employee rights. This means specific employee rights during workplace investigations will vary among employees.

The following covers six common employee rights in workplace investigations, which can become sources of concern or contest between employers, investigators, and employees:

1. Procedural fairness
2. Confidentiality rights
3. Legal or union representation
4. Privilege against self-incrimination
5. Reasonable accommodations
6. Work health and safety rights

1. Procedural fairness

For anybody facing a workplace investigation, procedural fairness is of critical importance. Procedural fairness applies to all aspects of a workplace investigation. This includes:

• Allegations must be properly particularised and detailed to ensure the respondent understands the accusations they face and what is the scope of the investigation.
• All evidence that is relevant, which either supports or contradicts the allegations, must be gathered and considered.
• Real or perceived biases, prejudgments, and conflicts of interest must be absent from the investigation.
• Investigators must act promptly to avoid unfair prejudice caused by delays.
• Potential consequences or penalties that might follow the investigation ought to be identified.

A person facing a complaint and subject to investigation should be afforded procedural fairness. This may involve having the opportunity to comment or respond to evidence that is inconsistent with or contradictory to their own evidence. It is not uncommon to see a respondent to an investigation not be afforded procedural fairness. Unfair workplace investigations can lead to disciplinary consequences including termination of employment that may be subject to successful claims or action by an employee.

2. Confidentiality rights

Given the reputational risks of some complaints, employers may have a duty to maintain confidentiality during a workplace investigation. It is quite common to see directions issued to staff to maintain confidentiality during investigations. This may apply to those who make a complaint, a witness to events, or a respondent.

Failure to appropriately manage the confidentiality of a workplace investigation can result in successful claims against an employer. That is particularly so if the breach of duty causes a psychiatric injury to the worker. An example of a case where compensation was payable to a respondent resulting from failings in a workplace investigation is East Coast Pipeline Pty Ltd v Workers’ Compensation Regulator [2016] QIRC 101. In that case, a number of issues in the investigation were inappropriately handled, including issues relating to confidentiality. It saw the employer liable for compensation.

3. Legal or union representation

Lawyers and union officials often assist employees who are required to respond to a workplace investigation. When facing an allegation that may upend your reputation and livelihood, getting professional support is a prudent step to ensure your rights are protected and your interests advanced.

There is generally no right to have an advocate attend interviews with an employee and speak on their behalf. However, lawyers and union officials often assist by ensuring employee rights are upheld during investigations and disciplinary processes.

One of the key roles a lawyer or union representative plays during a workplace investigation is to provide advice and guidance about the process. When there are concerns about the fairness of the process or likely consequences, it can be particularly helpful. A lawyer or union official may be able to assist in resolving concerns about workplace investigations. This includes ensuring adjustments are made, unfair investigations are stopped, or alternative resolutions are reached.

4. The privilege against self-incrimination

The privilege against self-incrimination is an important legal principle that is deeply rooted in our legal system. If you face complaints in the workplace, it is possible (but by no means inevitable) that such allegations could amount to criminal conduct. While it may not be applicable in many workplace investigations, among employee rights it is an important one.

The privilege against self-incrimination means that you cannot be compelled to answer questions that may show you have committed a crime if the answers that may be given may place you in real and appreciable danger of conviction.

The protection of the privilege against self-incrimination is more complicated with respect to workplace investigations than it is in purely criminal investigations. The High Court of Australia has stated that the privilege is capable of applying to questions asked by employers of employees: Police Service Board v Morris (1985) 156 CLR 397. So the privilege against self-incrimination may apply in the employment sphere if there is a real and appreciable danger that you would incriminate yourself by answering particular questions in an interview: Grant v BHP Coal Pty Ltd [2017] FCAFC 42.

5. Reasonable accommodations

Employers should ensure reasonable accommodations are afforded to employees who may suffer from a disadvantage that makes their participation in a workplace investigation more difficult. This may be due to a particular characteristic, disability, or illness suffered by the participant.

Illnesses are a common issue encountered during workplace investigations. The employer or workplace investigator should take steps to understand, including through medical evidence, whether accommodations are needed and if so, what they may be.

It can be an error for an employer or workplace investigator to not afford someone facing allegations a support person during any meetings or interviews that take place. For example, in Sheng He v Peacock Bros Pty Ltd & Wilson Lac v Peacock Bros Pty Ltd [2013] FWC 7541, an unfair dismissal claim was successful when it was found that it was unfair due to a support person not being present during a disciplinary meeting in addition to flaws in the investigation process.

6. Health and safety rights

In Australia, certain work health and safety laws require employers to take steps to eliminate psychosocial risks from the workplace. In the context of dealing with complaints and grievances, such employee rights can present challenges for employers.

Employers have a duty of care for employees who are required to deal with a workplace investigation. This includes a duty to protect the health and safety of employees who face complaints as part of a workplace investigation. An employer may be liable for injuries caused as a result, as was the case in Hayes v Queensland [2016] QCA 191. In that case, Dalton J stated at paragraph [110]:

In an appropriate case a duty will arise not because the work, workload, or system of work itself is creating problems, but because there is unhappiness within the workplace, not of the employer’s making, but of which the employer is aware.

Hayes v Queensland [2016] QCA 191 concerned four employees who faced allegations of bullying and harassment from their colleagues. The allegations were unsubstantiated following a lengthy workplace investigation. However, claims were brought against the employer (State of Queensland) for breaching its duty of care by failing to provide adequate support during the process. It was found that a duty of care may be owed to employees facing complaints and who may be the subject of investigation. As was observed by Dalton J at paragraph [173]:

In Johnson v Unisys Ltd the speeches in the House of Lords recognised that in modern times it is generally recognised and understood that “work is one of the defining features of people’s lives” and that workplace stress can give rise to recognisable psychiatric illness.

Citation omitted.

A failure to take ensure a timely investigation and determination of a complaint within the workplace may also be a breach of the duties of care owed to employees: see Robinson v Queensland [2017] QSC 165.

There is an important difference between providing a safe system of work and a safe system of investigation. While the former may be seen as an employee right, the latter is not generally regarded as a right, as was held in Govier v Uniting Church [2017] QCA 12.

Do you face a workplace investigation?

Important considerations

The purpose of workplace investigations

A workplace investigation involves an examination of an allegation or allegations of wrongdoing against an employee. For an employer, a workplace investigation may also serve the following purposes:

• Enforce workplace standards
• Comply with legal obligations
• Minimise legal risks

The essential aim of a workplace investigation is to uncover facts so as to allow a decision to be made on a proper factual basis. However, employers are often balancing a number of interests in commencing a workplace investigation.

If you are the subject of a workplace investigation, it is critical to understand the options available to you in responding to it. Understanding the fundamental purposes and aims of workplace investigations should help to shape your response and clarify the options available to you.

Steps in workplace investigations

There are many possible formulations of the steps for a procedurally fair workplace investigation. However, the six basic workplace investigation steps are as follows:

1. Deciding whether to investigate
2. Planning the investigation
3. Gathering evidence
4. Allowing an opportunity to respond
5. Considering the evidence
6. Delivering findings and recommendations

Understanding the common steps involved in workplace investigations can be useful for those affected by them.

Employee responsibilities in workplace investigations

In workplace investigations, in addition to employee rights, there are responsibilities. The source of employee responsibilities can be varied. They may arise under laws relating to employment contracts, specific laws, or the policies and procedures an employee may be expected to adhere to in a given workplace.

Employees must generally comply with reasonable directions from their employer, including conditions imposed as part of a workplace investigation.

For workplace investigations, respondents generally have the following obligations:

• Act honestly and frankly
• Maintain confidentiality as reasonably required by the workplace investigation
• Not take adverse action against a complainant or witness
• Participate in the workplace investigation

There are exceptions to these general obligations. As such, it is always necessary to take a tailored approach when responding to workplace investigations.

Failing to uphold your responsibilities as part of a workplace investigation can have consequences. It may jeopardise the effectiveness of any response you provide, among other things. Obtaining early and authoritative advice from an experienced employment lawyer can assist you in understanding your rights, obligations, and options.

Responding to workplace investigations

A workplace investigation presents both risks and opportunities. For the respondent, the main risk is facing potential findings that may have reputational, professional, and financial consequences. However, workplace investigations also present an opportunity to ‘clear your name’ and move forward.

If you need to respond to a workplace investigation, 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

Work can be one of our defining characteristics, or at least play an important part in how we perceive ourselves. It is important not to underestimate the impact an allegation, grievance, or complaint in the workplace can have on the person facing it. This firm defends executives and employees who face investigations and wish to put their best foot forward.

Challenging unfair investigations at work

It is not uncommon for people to have misgivings about the fairness of a workplace investigation they may be subject to, yet still ‘hope for the best’ in the belief that it may be held against them if they challenge issues during the investigation. While this is an understandable thought, it can backfire. Failing to make a timely objection to something may be taken into account as being the product of disappointment with the process only in the aftermath.

Deciding to raise objections to aspects (or the entirety) of a workplace investigation requires careful consideration. However, where the concern relates to something that may adversely affect the conclusions reached by an investigator, it can be important to consider what impact it may have on the ultimate outcomes. Examples of instances where an investigation may be challenged include the following:

• Bias or perceptions of bias on the part of the investigator;
• Investigators acting inconsistently with the law or procedures relevant to the particular investigation;
• Allegations that are general, vague or do not disclose their basis; and,
• Failure to disclose key evidence or give notice about possible adverse findings.

Generally, though not always, the longer a process goes on the harder it is to seek alterations to it. For that reason, anybody who holds concerns about the fairness of an investigation into workplace bullying allegations ought to seek advice from an experienced employment lawyer at the earliest opportunity.

About Author: Andrew Anderson

If you are looking for a workplace investigation lawyer, Andrew Anderson has significant experience in helping people to respond to a workplace investigation. He assists executives, managers, and employees across Australia by:

• providing advice and guidance
• drafting response letters
• negotiating settlement agreements with employers
• litigating disputes in courts and tribunals