Do you face an unfair investigation at work? Learn about your options.

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Signs of an unfair investigation

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.

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.

Unfair workplace investigations

Investigation fundamentals

Many people who face a workplace investigation worry that they are not being treated fairly. Understanding the fundamentals of what makes for a fair investigation can help you navigate a difficult situation.

In Australia, 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 people 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.

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.

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

Employees facing workplace investigations have a number of rights or are owed a number of obligations by their employer. 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 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.

What you can do about unfair investigations

Challenging unfair investigations

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

1. Seek legal advice
2. Respond strategically
3. Challenging investigations

1. Seek legal advice

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 a workplace investigation.

If you have concerns about an investigation you are facing at work, seeking legal advice about your options is always a prudent step. Lawyers can assist respondents to workplace investigations in a number of ways, such as:

• advising on the legal and regulatory obligations of an employer to investigate
• detailing the dispute resolution processes for unfair workplace investigations
• drafting responses to complaints and 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

Workplace investigations can impact your reputation, livelihood, and financial security. If you are an executive, manager, or employee in Australia who is worried about a workplace investigation, contact me this law firm legal advice.

2. Respond strategically

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’.

It is not uncommon for people to initially feel like they will be able to easily ‘explain away’ the issue, only to later realise that the allegations or investigation is more complex than first thought. Isolation and a sense of disempowerment can also 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.

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. Challenging investigations

There are several actions an employee may take to challenge unfair investigations and processes. The particular action that may be taken by an employee always depends on the particular circumstances and applicable laws. Action may involve:

• Internal appeals against the conduct of the investigation or 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 costs, which is why getting legal advice to evaluate the various options can be a valuable first step.

Why your response matters

Your response is important

People subject to workplace investigations are often facing potential disciplinary action up to and including dismissal. Moreover, evidence provided as part of a workplace investigation can sometimes be used in other ways. For instance, professional regulatory bodies and law enforcement agencies may obtain it in some cases. Also, it may be produced in legal proceedings. These issues highlight why it is prudent for people facing workplace investigations to get legal advice as early as possible.

Many executives, managers, and employees find themselves responding to a workplace investigation before they stop to consider their rights, responsibilities, and options. Amid the stress and panic of being informed that you are under investigation, it is possible to make mistakes and not put your best foot forward.

The longer a process continues, the harder it can be to change course or correct mistakes made. 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.

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. As with any legal issue, there is no substitute for getting professional legal advice as early as possible.

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