1. Rights in workplace investigations
1. Rights in workplace investigations
Facing a workplace investigation can be a daunting experience, especially for those who have never encountered one before. Understanding the process, knowing your rights, and being aware of how to respond effectively are crucial. Getting a lawyer to provide advice and guidance can also help people, particularly those who feel they are facing an unfair investigation at work.
Workplace investigations are conducted to uncover facts regarding allegations of wrongdoing within an organisation. These investigations serve a number of purposes, for example:
- Workplace investigations help enforce workplace standards by ensuring compliance with internal policies and procedures.
- Workplace investigations help employers comply with legal obligations such as health and safety regulations, thereby minimising legal risks.
Properly conducted investigations demonstrate due diligence and procedural fairness. For employees, understanding the purpose behind these investigations can alleviate some anxiety and provide a clearer perspective on how to navigate the process.
Employee rights in workplace investigations
In Australia, employees have a number of rights during workplace investigations that ensure fair treatment and protect their interests. Such rights can be essential for maintaining trust and integrity within the workplace.
While specific circumstances always need to be considered, there are six rights or expectations that are generally observed as part of workplace investigations in Australia:
- Procedural fairness
- Confidentiality rights
- Legal or union representation
- Privilege against self-incrimination
- Reasonable accommodations
- Work health and safety rights
1. Procedural fairness
Procedural fairness, also known as natural justice, is a cornerstone of a fair workplace investigation. Ensuring procedural fairness helps in maintaining the integrity of the investigation and the trust of the employees involved. Although it can apply flexibly according to the circumstances, a procedurally fair workplace investigation will have the following characteristics:
- Transparent and impartial investigation processes.
- Detailed and specific allegations.
- All relevant evidence is gathered and considered.
- Absence of any biases, prejudgments, and conflicts of interest.
- Delays must be minimised to prevent undue stress or prejudice.
2. Confidentiality rights
Ensuring confidentiality helps in preserving the integrity of the investigation and protects the personal and professional reputations of the individuals involved. Generally, employers seek to ensure that details of the investigation are not disclosed unnecessarily and that information is only shared on a ‘need-to-know’ basis. Breaches of confidentiality can lead to successful claims against the employer, especially if such breaches cause harm to the employee.
3. Legal or union representation
In Australia, generally, employees have the right to seek legal or union assistance during a workplace investigation. Professional supports can provide valuable advice and guidance throughout a workplace investigation. They can help ensure that the rights of employees are upheld, and that the investigation is conducted fairly. Such representatives also play a crucial role in resolving concerns about the investigation’s fairness and advising on the best course of action.
4. Privilege against self-incrimination
This legal principle protects individuals from being compelled to provide evidence that could incriminate themselves. In workplace investigations, this right is particularly relevant when allegations could potentially lead to criminal charges. The privilege against self-incrimination ensures that employees cannot be forced to answer questions that might expose them to criminal liability. There are complexities associated with the privilege against self-incrimination in the context of workplace issues. In all workplace investigations, it is prudent to seek legal advice as early as possible. Understanding this right can help employees navigate complex investigations where legal and criminal implications may be involved.
5. Reasonable accommodations
In Australia, employers may be required to provide reasonable accommodations for employees who have disabilities or illnesses that affect their participation in the investigation. While almost all workplace investigations allow an employee to have a support person, making adjustments to work schedules, or providing additional support to ensure the employee can participate fully in the investigation can be necessary in some cases. Ensuring reasonable accommodations promotes a fair and inclusive investigation process.
6. Work health and safety rights
Employers have a duty to protect the health and safety of employees during a workplace investigation, including managing psychosocial risks. Employers may need to take steps to ensure that the investigation does not exacerbate any existing health issues or create new health and safety risks. Protecting the health and safety of employees is not only a legal obligation but also essential for maintaining a supportive and respectful workplace environment.
2. Responding to workplace investigations
2. 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:
- Review relevant laws and policies
- Gather supporting evidence
- Identify what you accept or reject
- Consider your rights and options
- Get advice from a lawyer
- 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.
3. Unfair workplace investigations
3. Unfair workplace investigations
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.
Indicators of unfair workplace investigations
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.
Challenging unfair workplace investigations
There are steps people can take when faced with an unfair workplace investigation. There are a number of options a respondent may wish to consider, including:
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, seeking legal advice is a prudent step.
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.
4. The role of a lawyer in responding
4. The role of a lawyer in responding
Facing a workplace investigation is a serious matter that can have significant consequences on your employment and professional reputation. Moreover, in some cases complaints may be referred to external law enforcement agencies or professional disciplinary bodies, underscoring the importance of seeking legal advice as early as possible.
Workplace investigations often involve a number of steps, all of which can trigger disputes. Such disputes are often grounded in laws, industrial instruments, contractual terms, and workplace policies. A lawyer can assist you in understanding how to best respond at every stage.
Experience also shows that opting to forgo early legal advice can make see employees make mistakes in responding to an investigation, which sometimes cannot be later remedied. While responding to a workplace investigation without legal advice may be common, hiring a lawyer to assist you in responding may be a prudent decision for several reasons.
1. Legal expertise and knowledge
A lawyer brings extensive knowledge of employment law and the legal frameworks governing workplace investigations. This expertise can help you understand your rights and your employer’s obligations, ensuring that your response is both legally sound and strategically effective.
2. Tailored and strategic responses
Lawyers are skilled in crafting tailored responses. They can highlight procedural flaws and assist you to provide evidence that supports your case. Their ability to structure a compelling argument can significantly enhance the persuasiveness of your response, potentially preventing disciplinary action.
3. Navigating complex issues
The legal implications of a workplace investigation can be complex. A lawyer can help you navigate this terrain, advising on the strengths and weaknesses of different courses of action. Additionally, a lawyer can help in identifying risks in certain options, which may not be obvious to an employee who has never faced a complaint or investigation.
4. Professional communication
Facing a workplace investigation is inherently stressful. The potential threat to your livelihood from any disciplinary action that may result can be a source of real worry. A lawyer can alleviate some of this stress by assisting you in communicating your case, advising you on exercising your rights, and providing a clear path forward. They ensure that your response to an investigator is professional, respectful, and focused on meeting the allegations.