Facing an unfair workplace investigation?

Investigation Fundamentals

A question of balance

A workplace investigation must balance several considerations.

There must be procedural fairness afforded to both complainants and respondents. The potential (unfair) damage to reputations and careers from allegations in the workplace can be significant. Whether disputed or not, allegations can cause distress and panic in the workplace. It is why all those facing a workplace investigation ought to clearly understand their rights and responsibilities so they can make informed decisions.

Failing to properly investigate issues carries its own risks, as is the case for unfair workplace investigations. Employers may face legal action for the harm or damage caused through inadequate or unfair workplace investigations.

Believing the investigation you are subject to is unfair can feel overwhelming. For that reason, understanding as much as possible about the fundamentals of workplace investigations can be the start of properly defending your interests.

Getting informed

Getting informed about what a fair workplace investigation looks like is a good first step. There are a number of ways to do so if you are the subject of an investigation:

• Learn more about workplace investigations and important considerations (read on)
• Get urgent, initial legal advice from an employment lawyer (learn more)
• Get representation to challenge an unfair investigation (details below)

Getting expert advice can be crucial to understanding your rights and responsibilities. It may also assist you in exercising your options and advancing your interests.

Executives and employees subject to workplace investigations are often facing potential disciplinary action up to and including dismissal. The longer a process continues, the harder it can be to change course. Once a disciplinary decision has been made from a workplace investigation, it can be difficult to overturn. Conciliation outcomes from the Fair Work Commission show reinstatement is unlikely after dismissal:

Whether by agreement through conciliation or following a decision after a contested process, experience shows that it is relatively rare for people to be reinstated after being dismissed from the workplace.

As with any legal issue, there is no substitute for getting professional legal advice as early as possible. However, understandably, before hiring a lawyer, most people want to get better informed about the general issues they face.

What is the purpose of a workplace investigation?

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

So the essential aim of a workplace investigation is to uncover facts so as to allow an employer to make a decision about a particular issue upon a proper factual basis. However, it is important to understand employers may be balancing a number of interests in starting a workplace investigation.

If you are the subject of a workplace investigation you believe or know to be unfair, it is critical to understand the options available to you to challenge it. Understanding the fundamental purposes and aims of workplace investigations should help to shape your response and clarify the options available to you in doing so.

Employee rights during workplace investigations

Employees facing workplace investigations have a number of rights or are owed a number of obligations by their employer. Generally, these include:

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

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

Employee responsibilities during workplace investigations

In workplace investigations employees may have responsibilities as well as rights. They may arise from the duties employees owe employers generally 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 have a general responsibility to 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, which is why it is always necessary to take a tailored approach when responding to workplace investigations.

If you are facing a workplace investigation and fail to uphold your responsibilities as part of it, you may jeopardise the effectiveness of any response you may provide. Obtaining early and authoritative advice from an experienced employment lawyer can assist you to understand your rights, obligations and options.

Unfair Workplace Investigations

Indicators of unfairness

It is important to understand that fairness is not a fixed concept when it comes to workplace investigations. There is flexibility as to what may be considered to be ‘fair’ based on the circumstances.

If you are facing a workplace investigation and are concerned that the process is unfair, it can be helpful to identify the reason you feel that way. For example, common concerns about unfairness in workplace investigations may relate to:

• Bias or perceived bias from the investigator / decision-maker;
• Conflicts of interest between participants and the investigator / decision-maker;
• Failure to follow relevant policies, procedures and industrial instruments;
• Vague, unclear and unparticularised allegations;
• Changes to the allegations or investigation without explanation;
• Lack of transparency regarding the evidence gathered;
• Failure to disclose the workplace investigation report;
• Failure to give adequate notice before responses are required;
• Directions to not communicate with potential witnesses;
• Denial of access to a support person;
• Delays in progressing or finalising the investigation; and,
• Omission to investigate issues raised by a respondent.

There are steps people can take to ensure procedural and substantive fairness when facing a workplace investigation. There are a number of options a respondent may wish to consider, including:

1. Seek legal advice
2. Outline concerns about the investigation
3. Initiate a legal claim in a court or tribunal

1. Seek legal advice

Seeking legal advice about unfair workplace investigations may be a prudent step for anybody dealing with such concerns. Lawyers can assist respondents to workplace investigations in a number of ways, such as:

• providing advice relating to the allegations faced;
• advising on the options having regard to industrial instruments and contracts;
• liaising with others, such as investigators and employers;
• resolving concerns, where possible, through negotiation;
• representing clients during workplace investigations and interviews; and,
• filing, litigating and defending claims in courts and tribunals.

Anderson Legal offers a confidential, fixed-price, and no-obligation initial consultation for people facing workplace investigations (learn more). It is designed to deliver clear and timely advice that allows you to understand the relevant legal issues and make informed choices about the action that may be taken.

2. Outline concerns about the investigation

One of the difficulties people face is not knowing whether to raise their concerns. It is understandable that people do not want to be seen as ‘difficult’ at the very point they may be facing a disciplinary decision by their employer. However, failing to raise concerns at an early time carries its own risks. Raising complaints about an investigation only after an adverse decision has been made can look like ‘sour grapes’.

Often the work of an employment lawyer involves assisting their client to challenge allegations, raise issues about procedural fairness, and sometimes engage in ‘without prejudice’ negotiations to resolve problems quickly.

3. Initiate a challenge to the investigation

There are several actions an employee may take to challenge unfair investigations and processes. This includes:

• Internal appeals against the process, as may be provided for in a modern award, enterprise agreement, employment contract, or the policies and procedures of a workplace;
• Filing an injunction to stop the workplace investigation;
• Filing a ‘stop-bullying’ claim in the Fair Work Commission;
• Filing an unfair dismissal claim in the Fair Work Commission;
• Filing a general protections claim in the Fair Work Commission;
• Filing a discrimination claim in anti-discrimination commission or tribunal, such as the Queensland Human Rights Commission (QHRC) or Australian Human Rights Commission (AHRC); or,
• Filing a breach of contract claim in a court.

While filing a legal claim can sometimes seem like the only way to get justice, starting claims can expose people to significant legal costs, which is why getting advice to evaluate the various options can be a valuable first step.

Important Considerations

Get appropriate support

People facing a workplace investigation are often instructed by their employer to keep the process confidential. It can make the process feel isolating and disempowering.

Isolation and disempowerment can lead people to feel they are simply subject to the process and that the result will be what it will be. This feeling can undermine the opportunity a person has to put their best foot forward in an investigation.

An experienced lawyer can help you gain a sense of support and authority.

In dealing with workplace investigations, it can be surprising how often employers and managers (even with the benefit of advisers), fail to afford procedural fairness, fail to comply with their own policies and procedures, or fail to take into account relevant information.

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

Dr Robert Cialdini identified ‘the principle of authority’ as one of the six key principles of influence in his book, “Influence: The Psychology of Persuasion”. It describes the tendency for people to agree or comply with people seen as having authority on a subject. Numerous studies have shown the impact of the ‘principle of authority’ on decision-makers. In the Harvard Business Review, he described the essence of the authority principle 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.

So, if you are facing a workplace investigation, getting a lawyer may assist in your voice being heard. However, the true value of a lawyer may run deeper.

The persuasiveness of the response is critical

While knowing the law is fundamental for a lawyer, so is their expertise as an advocate.

Advocacy is all about persuasion.

Persuasion leads thought and action. So in dealing with a workplace investigation, persuasiveness is a critical element to any response.

Work can be one of our defining characteristics, or at least an important part of how we perceive ourselves. So if you feel you are facing an unfair workplace investigation, it is obvious that it should generally be treated as being of the utmost importance.

Experienced lawyers are able to draw on past cases where similar issues were encountered and whether particular strategies or responses were persuasive. This bank of knowledge can be drawn upon to provide expert guidance for anybody newly facing such a situation.

Anderson Legal provides legal advice to executives and employees facing workplace investigations. Contact this firm for a confidential, fixed-price, and no-obligation initial consultation.

Fixed-price initial consultation

A fixed-price initial consultation is $495 incl. GST for up to one hour, which may be tax deductible (consult your tax advisor).

If you are dealing with a workplace investigation, book an appointment for an initial consultation with Anderson Legal. It is designed to deliver clear and timely advice that allows you to understand the relevant legal issues and make informed choices about the action that may be taken.

The time is devoted to ensuring an understanding of the particular issues to allow advice to be given based on the information you provide, which may include:

• The legal framework for workplace investigations:
  • Employer rights and responsibilities
  • Employee rights and responsibilities
  • Specific laws applying to the workplace
  • Specific procedures adopted by the workplace
• Outline of possible disciplinary outcomes
• Workplace investigation response options:
  • Options to resolve complaints and grievances
  • Responding to workplace investigations
  • Preparing for investigator interviews
  • Contesting allegations and findings
  • Possible referrals to external bodies
  • End of contract negotiations
• Specific issues with workplace investigations
  • Dealing with workplace investigators
  • Unfair workplace investigations
  • Victimisation and reprisal action
  • Public servants facing investigation
  • Executives facing investigation

An initial consultation with Anderson Legal is obligation-free, meaning there is no expectation or commitment to further legal work or costs. If you want to engage this firm to provide you with further advice or legal representation, estimates of costs will be provided as far as possible.

Initial consultations are by appointment only, with in-person, video, and phone options possible.

Who this firm assists

Anderson Legal exists to resolve workplace problems. It provides legal services to:

• small business operators
• executives in medium to large enterprises
• employees in medium to large enterprises
• public service employees

The potential impact of workplace investigations on reputations, relationships, and livelihoods makes it critical to have an employment lawyer who is equal to the task. If you need an employment lawyer, there are many reasons why Anderson Legal should be your preferred choice:

Read below how this firm can assist you, what it costs to get advice, and when to contact this firm.

How this firm can assist

With respect to workplace investigations, this firm assists its clients in navigating all kinds of issues, including:

• advising on the legal and regulatory obligations of an employer to investigate
• assisting with workplace investigations related to allegations and complaints
• detailing the dispute resolution processes for unfair workplace investigations
• negotiating resolutions with respect to contested workplace investigations
• outlining the potential risks faced by a person facing investigation, such as:
  • disciplinary possibilities
  • criminal law referrals
  • professional conduct referrals
  • anti-corruption agency referrals
  • civil litigation claims
• representing clients litigating improper investigations and unfair outcomes

Note: Anderson Legal does not provide advice relating to personal injury laws or workers’ compensation laws.

What it costs to get advice

Fixed price initial consultation

A fixed-price initial consultation is $495 incl. GST for up to one hour, which may be tax deductible (consult your tax advisor).

If you are dealing with a workplace investigation, book an appointment for an initial consultation with Anderson Legal. It is designed to deliver clear and timely advice that allows you to understand the relevant legal issues and make informed choices about the action that may be taken.

The time is devoted to ensuring an understanding of the particular issues to allow advice to be given based on the information you provide, which may include:

• The legal framework for workplace investigations:
  • Employer rights and responsibilities
  • Employee rights and responsibilities
  • Specific laws applying to the workplace
  • Specific procedures adopted by the workplace
• Outline of possible disciplinary outcomes
• Workplace investigation response options:
  • Options to resolve complaints and grievances
  • Responding to workplace investigations
  • Preparing for investigator interviews
  • Contesting allegations and findings
  • Possible referrals to external bodies
  • End of contract negotiations
• Specific issues with workplace investigations
  • Dealing with workplace investigators
  • Unfair workplace investigations
  • Victimisation and reprisal action
  • Public servants facing investigation
  • Executives facing investigation

An initial consultation with Anderson Legal is obligation-free, meaning there is no expectation or commitment to further legal work or costs. If you want to engage this firm to provide you with further advice or legal representation, estimates of costs will be provided as far as possible.

Initial consultations are by appointment only, with in-person, video, and phone options possible.

Representation for unfair workplace investigations

Anderson Legal is transparent about how it charges legal fees.

This firm generally charges on a capped-fee, fixed-fee, or time-costed basis. How you are charged is something that may be negotiated and your preferences are taken into consideration.

Please note that Anderson Legal does not undertake legal work on a ‘no-win, no-fee’ basis.

In providing representation to clients for workplace investigations, Anderson Legal puts in place a formal costs agreement. This includes a disclosure statement outlining important rights, as well as quotes or estimates for applicable legal fees.

When to contact this firm

Employment law issues can have strict timeframes, so it is prudent to seek legal advice as soon as possible for employment law concerns.

Workplace investigations can involve many legal complexities with potential consequences for reputations, relationships, and livelihoods. It is the reason why it can be critical for anyone facing such issues to get urgent legal advice.

If you want legal advice, you should call Anderson Legal to set up an appointment for a fixed-price initial consultation: