Unfair Misconduct Allegations
Allegations of misconduct at work can be unfair
The idea that someone may allege another of misconduct that is unfair, wrong, or fabricated, is a difficult topic for many people.
The thought that serious allegations can be made – and yet be wrong – makes people uncomfortable. For this reason, anybody facing an allegation of alleged misconduct faces a real disadvantage. Yet, it can be overcome.
Getting informed about your potential options before deciding how to respond to misconduct allegations is a good first step. There are a number of ways to learn more about these issues if you are the subject of an allegation, for instance:
- Learn more about defending allegations of work-related misconduct (read on)
- Get urgent, initial legal advice from an employment lawyer (learn more)
- Get representation to challenge unfair misconduct claims (details below)
Getting expert advice can be crucial to understanding your rights and responsibilities. It may also assist you in exercising your options and defending your interests. Employers may dismiss executives and employees found to have engaged in misconduct at work or misconduct that affects the workplace. Conciliation outcomes from the Fair Work Commission show reinstatement is unlikely following 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 issues they face.
Why unfair allegations may arise
Misconduct at work does occur. However, misconduct allegations that are false and 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 or action may be misunderstood.
There are, however, situations where people feel an improper motive is behind an allegation
Some people 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 the personal life of a person, such as a pregnancy announcement or a request for flexible working arrangements.
When different employees are subject to different standards or treatment, it can be more than a reason to be frustrated – it can be unlawful. A person facing unfair treatment in the workplace, or unfair disciplinary decisions, may have a number of options available to them:
- 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 Australian Human Rights Commission (AHRC) or Queensland Human Rights Commission (QHRC); 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.
There is no ‘all-purpose’ response to misconduct allegations
There are many different approaches a person may take when faced with a complaint about alleged misconduct. The reasons for this are obvious. Not all allegations are the same and individual circumstances need to be considered.
There are numerous forms of misconduct that may be of legitimate concern to an employer. Misconduct that occurs outside of the workplace and ‘office hours’ may still form the basis of a complaint. Forms of misconduct include:
- Workplace bullying
- Sexual harassment
- Work health and safety breaches
- Code of conduct breaches
- Misuse of workplace assets
- Social media misuse
- Being intoxicated at work
- Fights in the workplace
- Confidentiality breaches
- Corrupt conduct
- Theft of workplace property
The varied ways a misconduct allegation may arise, and the various forums in which misconduct claims can be progressed, means there is no ‘one-size-fits-all’ approach to responding.
Understand your options
There may be a number of options open when responding to a workplace investigation into alleged misconduct. However, because the situation may be unfamiliar, involves short timeframes, and is generally highly stressful, people do not always appreciate their options or weigh them in a considered manner.
Four common options when responding to a workplace misconduct complaint include:
- Obtaining advice and guidance;
- Challenging the process;
- Challenging the allegations; and,
- Initiating ‘without prejudice’ negotiations.
There are many different approaches a person may take and there is generally no one ‘right answer’ given different people will have different priorities. In some cases, there may be multiple strands to the response, with each strand having a distinct purpose but combining to operate together.
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 the problem quickly.
Every case is different. So anybody seeking personalised advice about a specific situation should consult a lawyer as soon as possible, as certain options may cease to be available as time passes. Anderson Legal offers a fixed-price, no-obligation initial consultation for people facing allegations related to misconduct at work (learn more).
Get appropriate support
People facing allegations of misconduct are often instructed by their employers 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.
An experienced lawyer can help you gain a sense of support and authority.
In dealing with workplace misconduct allegations, 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 this 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 misconduct allegation, particularly one you feel to be false or unfair, getting a lawyer may assist in your voice being heard. However, the true value of a lawyer should 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. As such, in dealing with an allegation related to misconduct, persuasiveness is a critical element in any response.
Work can be one of our defining characteristics, or at least an important part of how we perceive ourselves. So if you have been wrongly accused of misconduct, 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 misconduct claims and investigations. Contact this firm for a confidential, fixed-price, and no-obligation initial consultation.