Responding to workplace investigations

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How you can respond

Being the respondent in a workplace investigation can be daunting

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.

Having the opportunity to respond to allegations at work before an employer makes any decisions is an important part of a procedurally fair process. In fact, in Australia, if an employer fails to give an employee an opportunity to respond before taking disciplinary action, their decisions can be reversed and compensation ordered. Section 387 of the Fair Work Act 2009 (Cth) requires employers to give employees “an opportunity to respond” before terminating their employment.

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

1. Review relevant laws and policies

In responding to a workplace investigation, it is important to review the applicable laws and relevant internal policies. It is through such frameworks that the issues should be decided. What is ‘procedurally fair’ is not a fixed concept and can be influenced by various laws, policies, and procedures. Reviewing relevant industrial instruments can help respondents to an investigation understand what may be fair or appropriate.

Disputes often arise during workplace investigations over how much detail the respondent is provided about the allegation or complaint before being asked to respond. Typically, a respondent may be:

• advised (in writing or a meeting) that they are facing an investigation;
• informed about any changes to working arrangements (suspension, etc.);
• provided adequate details or particulars of the allegation, grievance, or complaint. This may require the investigator to identify the dates, times, places, and people that are relevant;
• given access to evidence that is relevant to the allegation, grievance, or complaint; and,
• told how the employee may respond, including any rules that may apply to the process.

If you are facing an investigation, it is common to develop concerns about whether you are being subjected to an unfair workplace investigation. Concerns and disputes can arise quickly when a respondent feels they are being denied natural justice and that it will compromise their opportunity to respond. The resolution of such issues is not always easy. Procedural fairness depends on all the circumstances, including the relevant laws and policies, which is why it is critical to evaluate such material at the outset.

2. Gather supporting evidence

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

When dealing with a workplace investigation, you may face 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 investigations at work 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 evidence may be relevant is not always obvious. The legal issues associated with certain forms of evidence can also be complex.

Workplace investigators are not necessarily 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.

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 under investigation. 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. This ensures an employee can see the basis upon which an employer raises an issue. For instance, it may show that the allegation, complaint, or concern is based on incomplete or inaccurate information.

Identifying what is accepted or rejected is an essential step when responding to a workplace investigation. Sometimes, strong challenges must be balanced with reasonable concessions. It can be difficult to get the balance right. Decisions of this nature are best made against the applicable legal principles, your rights, and advice received.

4. Consider your rights and options

You may have many choices to make when responding to a workplace investigation. However, the situation is likely unfamiliar, involves short timeframes, and is often stressful. In such circumstances, people do not always fully consider their rights and options. 

One option that people often do not consider early enough, if at all, is seeking to resolve an allegation or complaint through ‘without prejudice’ negotiations with their employer. It prompts this question: ‘Why would an employer negotiate with an employee under investigation? The reasons why employers may negotiate are not always obvious. The legal, financial, and reputational risks employers may face are complex. Reducing conflict – and risk – through negotiation can have benefits for all concerned.

In some circumstances, reaching a confidential, commercial settlement can be a sound alternative to litigating a dispute. It can allow a respondent to resolve their issues quickly, help to protect their reputation, and allow them to move forward quickly and with some financial security. It can allow people to move forward faster and more securely.

Considering your rights and options is essential in responding to a workplace investigation. 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 you to strategically respond to an allegation that sets off a workplace investigation.

Dismissal from a workplace can have far-reaching consequences. It can impact your reputation, livelihood, and financial security. For this reason, it is prudent to get legal advice before settling on how to respond to a workplace investigation.

Tailoring every response to a specific situation is always necessary. There is no ‘one size fits all’ approach to responding to a workplace investigation. An experienced lawyer can draw on their knowledge of the law and past cases that may have involved similar issues. This bank of knowledge can make a crucial difference to the ultimate outcome.

Anderson Legal provides legal advice to executives and employees needing to respond to workplace investigations. Contact this firm for a confidential discussion about how this firm can assist you.

6. Respond calmly and purposefully

It is necessary to respond calmly and purposefully to any workplace investigation. This means taking account of the issues at stake and the dangers of any missteps. Are you on a collision course with your employer? Or do you think you can carefully navigate through the troubled waters? A calm and purposeful response will look different to different people.

People can underestimate the scope of the task in responding to a workplace investigation. When something is unfamiliar, having realistic expectations can be difficult. This is particularly so when you feel the situation is unfair or unreasonable, but are unsure what the outcome will be.

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.

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.

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 purpose of a workplace investigation is to uncover relevant evidence to allow decisions 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 rights in workplace investigations

In workplace investigations, employee rights are important. Employers can owe a range of obligations to their employees. Commonly, employee rights in investigations include:

• Procedural fairness
• Confidentiality rights
• Legal or union representation
• Privilege against self-incrimination
• Reasonable accommodations
• Work health and safety rights

Understanding these rights can be important in navigating any workplace investigation.

Employee responsibilities in workplace investigations

In workplace investigations, in addition to employee rights, there are responsibilities. The source of employee responsibilities can be varied. Employee responsibilities arise in a variety of ways. Whether under employment contracts, specific laws, or internal policies and procedures, employees may have a number of responsibilities regarding their employment.

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.

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