About Workplace Investigations
Receiving notice that you are the subject of a workplace investigation into a discrimination complaint can feel overwhelming. Understanding as much as possible about the process can be the start of properly defending your interests.
Getting informed about your potential response options to a workplace investigation is a good first step. There are a number of ways to do so if you are the subject of a discrimination allegation:
- Learn more about workplace investigations, general options and important considerations (read on)
- Get urgent, initial legal advice from an employment lawyer (learn more)
- Get representation to challenge a discrimination claim (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 found to have engaged in discrimination often face the prospect of dismissal. 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 looking into discrimination allegations you believe or know to be unfair, wrong or vexatious, the only purpose you have is to clear your name. Understanding the fundamental purposes and aims of workplace investigations should help to shape your response and clarify the options available to you in responding.
Employee rights during workplace investigations
Employees facing workplace investigations into discrimination allegations at work have a number of rights or are owed a number of obligations by their employer. Generally, these include:
- Confidentiality rights
- Work health and safety rights
- Legal or union representation
- Privilege against self-incrimination
- Procedural fairness
- Reasonable accommodations
Understanding these rights can be important to understand how a workplace investigation may best be navigated.
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.
In a workplace investigation into a discrimination allegation, a respondent will 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 a workplace investigation into discrimination complaints.
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.
There is no ‘all-purpose’ response to discrimination claims
There are many different approaches a person may take when faced with a complaint about alleged discrimination. The reasons for this are obvious. Not all allegations are the same and individual circumstances need to be considered.
Discrimination in the workplace can take different forms. A study by the Diversity Council of Australia on discrimination and harassment in the workplace showed the highest rates were experienced by people who are Aboriginal and Torres Strait Islander, people with non-Christian religious affiliations, people with disabilities, people who identify as LGBTIQ+, and young workers (under 30):
Workplace discrimination does occur. So do complaints of discrimination that are unfair or false. It is not always a case of the accuser lying about events. People can wrongly label something as “discrimination”. The context of an event or action may be misunderstood. In some cases, discrimination is permitted under the law.
Executives and managers may face false or unfair allegations from their management decisions. Employees may try to cover their poor performance by claiming their manager has discriminated against them.
The varied ways a discrimination complaint may arise, and the various forums in which discrimination complaints can be progressed, means there is no ‘one-size-fits-all’ approach to responding.
Understand your options
When responding to a workplace investigation into a discrimination complaint, there may be a number of options open. 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 discrimination 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, which is why anybody seeking personalised advice about a specific situation should consult a lawyer as soon as possible, as certain options may cease to be available the longer an investigation proceeds. Anderson Legal offers a fixed-price, no-obligation initial consultation for people facing an investigation into workplace discrimination claims (learn more).
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 discrimination claims, 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 an investigation into a workplace discrimination allegation, 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. So in dealing with an investigation into workplace discrimination, 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 have been wrongly accused of discrimination at work and facing an 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 investigations into workplace discrimination claims. Contact this firm for a confidential, fixed-price, and no-obligation initial consultation.