Can I be investigated at work without my knowledge?

Dealing with a workplace investigation can be a nightmare. But it is worse if your employer decides to embark on a fact-finding journey without your knowledge. You are at risk of being falsely accused or getting a termination. Your employer has the right to conduct their business in a certain manner. But you also have rights as an employee in the face of an investigation at your workplace.

Employers are always keen to discover, investigate and handle all workplace grievances. They usually depend on a workplace investigation to figure out the truth of a situation. While a workplace investigation requires confidentiality, there is a need for procedural fairness. This is what distinguishes a true investigation from a witch-hunt.

Are you disgruntled at your workplace? Do you think your employer might embark on a workplace investigation? Are you uncertain if you can be investigated at your job without your knowledge? Keep reading to understand whether your employer can embark on a secret workplace investigation.

Why can you be investigated without your knowledge?

The workplace is dynamic and certain employee misconduct may warrant an investigation. Your employer might choose to investigate you secretly if they believe:

• They have strong reasons to believe that you are capable of tampering with evidence. Or capable of disrupting the investigation process.
• They are wary of an employee tipping off key witnesses and influencing their testimony.
• They want to keep such employees under close observation to find out certain truths.
• They wish to keep the case confidential from all parties involved to avoid employees being disgruntled.
• They are currently investigating an employee for illegal or fraudulent deeds. And they reckon such a person may flee before the investigation is concluded.

7 potential consequences of a secret workplace investigation

As outlined above, an employer may have valid reasons for conducting a workplace investigation without the knowledge of the employee. And while it may be legal for them to do so, it can have damaging consequences for the employee. This includes:

1. Breaching trust

When employees become aware that they are being secretly investigated, it can lead to a breach of trust between the employer and the employee. The perception of being monitored or targeted without knowledge can create a hostile work environment and erode employee morale. Employees may feel betrayed and unfairly treated. This can negatively impact their job satisfaction and productivity.

2. Psychological and emotional impact

Being subjected to a secret workplace investigation can cause significant psychological and emotional stress for employees. The uncertainty, anxiety and fear of potential consequences can take a toll on their mental well-being. This can lead to increased stress levels, decreased job performance, and even physical health issues.

4. Negative impact on co-workers

Workplace investigations conducted in secret can have a negative impact on team dynamics. When employees are unaware of an investigation, it can create a sense of suspicion and uncertainty among team members. This can lead to a breakdown in communication, collaboration and trust within the team. The presence of a secret investigation may cause employees to become guarded and hesitant to share information or ideas with their colleagues, fearing that it may be used against them. This can hinder teamwork and hinder the overall performance of the team.

5. Unfair treatment and bias

Without the knowledge of being investigated, employees may not have the opportunity to address or challenge the allegations against them. That is, they may be denied their right to procedural fairness. The employee’s lack of awareness and involvement in the workplace investigation process can result in unfair treatment and potential bias. Employees may feel that their rights are being violated. And that the workplace investigation is being conducted without giving them a fair chance to defend themselves.

6. Damage to professional reputation

Even if a secret workplace investigation finds an employee to be innocent of any allegations, the mere fact of being secretly investigated can damage their professional reputation. Rumours or speculation about the workplace investigation can circulate within the workplace. This could potentially harm the employee’s professional reputation and possibly even their future job prospects.

7. Legal implications

Secret workplace investigations that disregard procedural fairness and fail to provide employees with an opportunity to respond can have legal implications for employers. If an employee feels that they have been unfairly treated or dismissed as a result of a flawed investigation process, they can take action by making an unfair dismissal claim via the Fair Work Commission.

Can your employer secretly record you at work?

As part of a workplace investigation, an employer may look to secretly record you. This may be a recording of a meeting or conversation while you are at work. Or a recording of a phone conversation.

So, is this lawful? The short answer is that in most cases it is not lawful. However, it depends on which state or territory you are located in. Secret recordings may be legal in certain states and territories. But the Fair Work Commission has often expressed a negative view of secret recordings in the workplace. Even if it may be legal.

However, the Fair Work Commission took a different view in the unfair dismissal case Terrence McGlashan v MSS Security Pty Limited [2022]. In this case, an employee had his phone conversations recorded by his employer. And the recordings were used to justify his dismissal.

Worker dismissed due to secret recordings of inappropriate conversations

An interesting detail about this case is that the employee, Terrence McGlashan, had not been subject to a workplace investigation by his employer, MSS Security. The company had been conducting a workplace investigation into an unrelated matter. But it just so happened that this investigation saw MSS Security record phone conversations involving Mr McGlashan.

The recordings revealed that Mr McGlashan was having highly offensive conversations with his colleagues. He was subsequently dismissed for the nature of what he was saying on the phone conversations.

Mr McGlashan challenges dismissal via the Fair Work Commission

Mr McGlashan subsequently made an unfair dismissal claim with the Fair Work Commission. However, prior to his claim being heard, he applied for an advance ruling on the admissibility of evidence. In other words, he wanted the Fair Work Commission to rule out the use of his phone conversation recordings by MSS Security as evidence.

Mr McGlashan argued that the phone recordings were illegally and improperly attained. And that they violated Australian Capital Territory law regarding listening devices. To decide if there was a violation of the law, the Fair Work Commission had to determine if the phone recordings had been made with or without Mr McGlashan’s knowledge and consent.

However, the Fair Work Commission found that Mr McGlashan’s employment contract included a telling clause. It provided him with notice that MSS Security may conduct surveillance of him via camera, computer or tracking while at work. The company also had a policy that stated that workplace surveillance could include “audio recordings of telephones at some of the MSS Security work locations.”  

Fair Work Commission allows recordings as evidence in unfair dismissal hearing

Mr McGlashan told the Fair Work Commission that he was aware that external phone calls could be recorded by MSS Security. However, he said that he did not know that his employer could record phone conversations that took place within the workplace between colleagues.

The policy of MSS Security set forth that it may conduct surveillance of “telephones.” But it did not specify if it would be conducted on internal or external calls. Mr McGlashan also told the Fair Work Commission that he had previously requested MSS Security’s IT team to record his phone line. But he had not specified if they were to do so for his internal or external calls.

The Fair Work Commission therefore found that Mr McGlashan was aware that his phone calls could be subject to surveillance. And because he had consented to the provisions of his employment contract and MSS Security’s policy, the Fair Work Commission found that Mr McGlashan had also agreed to allow his employer to use a listening device to record his phone calls.   

The Fair Work Commission therefore permitted Mr McGlashan’s phone recordings to be used as evidence in his unfair dismissal hearing.

Tips on what to do when you feel you are being secretly investigated at the workplace.

While being secretly investigated may be harrowing, here are some tips on how to conduct yourself in the workplace.

• Stay alert and calm: If you feel you are under a secret investigation in your workplace, do not panic. Ensure that you stay alert to understand the nature of the investigation and remain calm even if you are uncomfortable with your employer’s pace. Being antsy and nervous will indicate guilt and influence the overall decision. When you are alert, you can figure out changes in either your employer’s or co-workers’ attitude towards you and prepare adequately.
• Study the employee handbook: The rights and obligations of both employers and employees are enshrined in the employee manual. The procedure for workplace investigation is spelled out and should guide you in making the right decision. Studying the content of this manual will also ensure you go through the appropriate channels for your complaints. You can also figure out if you can get external representation in such dire situations. You can ask a Human Resources representative for your company’s employee handbook.
• Gather all your evidence: To avoid the possibility of being misinterpreted and wrongly accused. Begin gathering your evidence early. Keep a written document that will form your defence log. Seek to understand the probable cause of the investigation and prepare for your defence. If your employer is investigating your case secretly, it could be that you are afraid of evidence being tampered with. Try not to meddle in the available evidence. Focus on gathering information that will prove you innocent before your employer in the future.
• Maintain professionalism and focus on your work: It can be challenging to stay focused during a secret workplace investigation. However, it is important to continue performing your duties to the best of your ability. Avoid engaging in gossip or negative discussions about the investigation with your colleagues. This can further complicate the situation. Make sure you maintain professionalism and dedicate yourself to your work. This will help demonstrate your commitment and can potentially mitigate any negative perceptions.
• Seek emotional support: Dealing with a secret workplace investigation can take a toll on your emotional well-being. It is essential to seek emotional support from trusted friends, family, or even professional counsellors. Discussing your concerns and feelings with someone outside of the workplace can provide you with an outlet to express yourself and gain perspective. Additionally, seeking support from employee assistance programs can provide you with resources and guidance during this challenging time. Taking care of your mental and emotional health is crucial throughout the process.
• Talk to your employer or HR: The pressure of being investigated secretly can be overwhelming. Rather than cracking under the weight of uncertainty, you can go ahead to speak to either your employer or the Human Resources manager. Seek an opportunity to meet them and table your concern before them. If they wish to continue keeping the case confidential, you would at least glean some key information as to why you are being investigated. It could also reassure you if your assumption is false.
• Speak to a professional: Whether you are being secretly investigated or not, proper legal representation is essential. Workplace investigation can be tricky and hard for you to navigate with proper guidance. Seek a reliable workplace advisor who can evaluate your current situation and provide adequate counselling. The result of a secret investigation might be dismissal from work. If you are unfairly dismissed, you might need to seek redress for either reinstatement or compensation. Having professional help at this point makes it easier to file an unfair dismissal claim and ensures you can get the result you seek. If you are unsure about the best option, A Whole New Approach is your best bet.

Procedural fairness: The hallmark of a Workplace Investigation.

In a workplace investigation, procedural fairness refers to giving an employee a fair opportunity to put up a defence for themselves in the face of an accusation before a disciplinary decision is taken. What this entails is that the employer will inform the accused person and offer them a chance to prepare their defence before they are either dismissed or the case is solved.

Every workplace investigation must adopt procedural fairness if the employer does not want to be saddled with a case of unfair or constructive dismissal. This process follows a democratic approach that gives room for both the offended parties and the alleged offender to share their sides of the story.

Procedural fairness is not concerned with the final decision arrived at the end of a workplace investigation. It is more interested in the processes followed throughout the workplace investigation. This term can also be referred to as natural justice.

An employer has the right to conduct a workplace investigation without the knowledge of the employee. However, they can not simply conduct a workplace investigation in secret and then make a decision to dismiss you. They must afford you procedural fairness before they make that decision.

According to the Fair Work Commission, to ensure procedural fairness while considering a dismissal, an employer must:

• Provide the employee with a clear warning (preferably in writing). And in doing so, advise the employee that unless they improve on their attitude or performance, their employment may be at risk.
• Offer the employee a sufficient amount of time to improve. And provide the employee training, support, or the opportunity to develop their skills.
• Ensure that the employee comprehends the problems, and the consequences of them, in reasonable detail.
• Provide the employee with a reasonable opportunity to respond to the reasons for wishing to terminate their employment.
• Allow the employee to have a support person present at any meetings concerning their potential dismissal.
• Ensure that anyone involved in making a dismissal is unbiased.

Making an unfair dismissal claim when denied procedural fairness

If you have been dismissed by your employer, but were denied procedural fairness during a workplace investigation, you may be able to contest your dismissal through the Fair Work Commission. That is, by making an unfair dismissal claim.

There have been many unfair dismissal cases where an employer had a valid reason to dismiss an employee. However, because the employee denied procedural fairness during a workplace investigation, the dismissal was ruled to be unfair by the Fair Work Commission.

Case Examples:

Mr Simon Ronchi v Johns Lyng Group [2022]

In the unfair dismissal case Mr Simon Ronchi v Johns Lyng Group [2022] FWC 326, a manager for an insurance company was dismissed for serious misconduct. A workplace investigation had uncovered that Mr Ronchi had sent a series of text messages to another manager saying that he was having an affair with his wife.

He had also promoted his own business by using Johns Lyng Group’s email address. This was a breach of the conflict of interest clause of his employment contract. Mr Ronchi had also been found to have neglected his duties by doing personal shopping during his work hours. This was proven with the help of CCTV footage.

The Fair Work Commission found that Johns Lyng Group had a valid reason to dismiss Mr Ronchi. It was accepted that the text messages to the manager were intended to cause harm, thereby causing damage to the employee-employer relationship. The Fair Work Commission therefore deemed that Johns Lyng Group had acted in a proportionate manner in dismissing him for serious misconduct.

However, even though there was a valid reason for the dismissal, it was ruled to be unfair. This was because during its workplace investigation, John Lyng Group had denied Mr Ronchi procedural fairness. The Fair Work Commission found that the company had not provided him with the evidence substantiating the allegations made against him. Namely, the text messages, emails and CCTV footage.

This meant that Mr Ronchi was not able to understand the nature of the allegations and the amount of evidence. And therefore, John Lyng Group did not provide him with a fair chance to respond to the allegations made against him. That is, prior to the company making the decision to dismiss him.

The Fair Work Commission subsequently awarded Mr Ronchi $1,635 in compensation. This was equal to one week of his salary.

Joshua Jimenez v Accent Group T/A Platypus Shoes (Australia) Pty Ltd

In the unfair dismissal case Joshua Jimenez v Accent Group T/A Platypus Shoes (Australia) Pty Ltd, a store manager was dismissed for serious misconduct. A workplace investigation determined that Mr Jimenez had failed to properly record and receipt the cash for a purchase he had made at his employer’s store.

Mr Jimenez had paid for a pair of New Balance shoes by layby. Accent Group’s store policy required layby purchases to be completed within 60 days. However, Mr Jimenez did not complete the layby within 60 days. And not only that, he wore the shoes without completing the layby.

A few months later, Mr Jimenez sold two pairs of shoes to a friend who came to the store. He had received $220 in cash. However, Mr Jimenez had failed to make a record of this payment until a week after the sale. Separate to these purchases, he had also been found to have not kept in line with timekeeping practices by not scanning in or out of work.

Mr Jimenez told the Fair Work Commission that Accent Group had denied him procedural fairness in multiple ways. This included that he was not provided with adequate notice of his dismissal. That he was lured into a meeting regarding the allegation with deceitful tactics. And that there was insufficient evidence to prove that his actions amounted to “deliberate criminality.”

The Fair Work Commission found that his purchasing of the shoes on layby was not a valid reason for dismissal. And neither was Ms Jimenez’s failure to record his hours. His failure to immediately process the cash payment of the sale of shoes to his friend was however found to be a valid reason for dismissal.

However, the Fair Work Commission also found that Accent Group had made a number of errors with regard to procedural fairness during its workplace investigation. This included that the company had:

• Deceitfully lured Mr Jimenez into a meeting regarding his allegations.
• Denied him the right to have a support person present in that meeting.
• Decided to dismiss Mr Jimenez during a meeting when they were meant to consider his response to the allegations.

Due to the unfair workplace investigation, the Fair Work Commission therefore ruled that the dismissal was unreasonable and unjust. Accent Group was ordered to pay Mr Jimenez $1,100, which equated to one week of his pay.

Gregory Gibbens v The Commonwealth of Australia (Department of Home Affairs)

In the unfair dismissal case Gregory Gibbens v The Commonwealth of Australia (Department of Home Affairs) [2018] FWC 4150, a casual airport worker was dismissed for serious misconduct. Mr Gibbens had been involved in number of incidents with passengers at Perth Airport. His employer had received numerous complaints about these incidents.

In one incident, Mr Gibbens wiped a passenger’s passport on her sleeve after she had had it in her mouth. He had also acted in a disrespectful manner toward a man who turned out to be a high ranking manager at Perth Airport. Mr Gibbens had also advised a passenger flying to Bali to take a whole bottle of Valium. And he had told a passenger “You’re brave flying with Air Asia.”

Due to these incidents, Mr Gibbens decided not to offer him any more shifts. This meant that he was effectively dismissed. The Fair Work Commission found that Mr Gibbens’ behaviour towards passengers was inappropriate. And that it constituted a valid reason for dismissal.

However, the Fair Work Commission also found that Mr Gibbens employer had not warned him about his inappropriate behaviour. Namely, to tell him that any further instances of inappropriate behaviour would result in his dismissal. The Fair Work Commission therefore ruled that Mr Gibbens’ dismissal had been unfair. It ordered his employer to pay him $5,278 in compensation.

Making an unfair dismissal claim with the Fair Work Commission

If you were denied procedural fairness during a workplace investigation. Or if you feel your dismissal was not warranted, you may be able to make an unfair dismissal claim. You have to act fast, however. An unfair dismissal claim must be lodged with the Fair Work Commission within 21 days of your dismissal.

Other eligibility criteria includes:

• That your employer is covered by the National Workplace System.
• That you have already been dismissed.
• That you were working at your employer for a minimum of 6 months. Or 12 months if your employer is a small business (with fewer than 15 employees).
• If you are a casual employee, that you worked on a regular and systematic basis. And that you reasonably believed that your work would continue.
• That your salary is less than the high-income threshold. As of 1 July 2022, the high-income threshold is $162,000.

Wrapping up

Your employer has the right to conduct a workplace investigation if it suspects an employee of misconduct. It is a reliable way of digging up facts in the face of issues like bullying, harassment, or theft. Your employer is entitled to commence an investigation into an accusation by either a co-worker or a customer.

For the reasons we outlined earlier, your employer has the right to conduct a secret workplace investigation. It may be the best way for them to uncover the truth. But remember, even if you may not be aware of a workplace investigation, you are still entitled to procedural fairness. This means that your employer should inform you either in writing or orally about your alleged offence and the need to begin an investigation. However, your employer can withhold information from you if they feel you might tamper with evidence. Or if they believe you might flee from the workplace or become disgruntled.

A Whole New Approach can help

Getting professional help is a key factor that can change your fate in a secret workplace investigation. A Whole New Approach (AWNA) can help you evaluate your situation and give you relevant advice that will ensure you are not unfairly treated or dismissed. Are you unsure about an allegation at work? Do you think you are being secretly investigated at work? Speak to any of our professional advisors today at 1300 766 700.

And if you are dismissed due to a workplace investigation, we can help you take action through the Fair Work Commission. We have deep experience lodging successful unfair dismissal claims. Our team has helped over 16,000 Australian workers do just that in the last 20 years.

But if you have been dismissed, act fast. You only have 21 days to lodge your unfair dismissal claim. Call us now on 1300 766 700 for a free and confidential discussion.