Workplace Investigations: What are my Rights as an Employee?

workplace investigations and how to conduct them

Overview:

“An employee facing a workplace investigation in Australia is entitled to crucial rights, one of which is the principle of procedural fairness. This entails a guaranteed opportunity to adequately respond to all allegations, including any that emerge during the investigation process, before any definitive decision is reached. A fair, unbiased procedure is not only a right but a necessity, ensuring that justice is upheld in every workplace interaction.”

Gary Pinchen

As an employee, you have the right to procedural fairness in the investigation. This means that the procedure by which the decision is made must be fair and free from bias.

This should mean:

  • The investigation is conducted in a timely manner, without unreasonable delay;
  • You receive adequate and clear information about meetings and allegations, so that you may be prepared to defend yourself;
  • You are given ample notice of all meetings and sufficient time to respond;
  • You are permitted to have a support person accompany you in all meetings relating to the investigation, such as a partner, family member, friend or union representative;
  • Your defence or response to the allegations is appropriately and carefully considered by your employer before any outcome is delivered.

Refer to Fair Work Commissions latest unfair dismissals benchbook for latest rule and law changes.

Workplace investigations

It’s very daunting to be told that you are under investigation in your workplace. The process may appear unfamiliar, and you may be intimidated by legal terms or invitations to formal meetings. Sometimes, you may not even know what you have done wrong. This begs the question: what are your rights as an employee when faced with a workplace investigation? If and when does the Fair Work Commission get involved?

Tips for employees on how to behave when in a workplace investigation infographic

What is a ‘workplace investigation’?

 A workplace investigation involves the employer investigating whether an employee has engaged in misconduct, usually upon receiving a complaint from another employee. For example, the investigation may concern allegations of theft, fraud, bullying, sexual harassment, discrimination, breaches of company policy or safety procedures, or any other matter deemed serious enough to warrant disciplinary action.

Other reasons for conducting a workplace investigation may include:

  • Recklessly causing a workplace accident;[1]
  • Inappropriate use of social media, such as threatening or disparaging comments about a colleague;[2]
  • Failure to follow lawful and reasonable directions of the employer, such as to attend a medical appointment for a workplace injury;[3]
  • Transmission of pornographic emails[4] or messages.[5]

The workplace investigation typically consists of a fact-finding exercise. The employer will usually interview other employees as witnesses, peruse records, or view evidentiary material such as CCTV footage.

Workplace investigations can be carried out by the employer themselves, usually through Human Resources, or by an external agency. This choice is at the discretion of the employer, though the employer has a duty to ensure the workplace investigation is correctly conducted and for a proper purpose.

Understanding the Workplace Investigation Process

As an employee or employer, you might have questions about the workplace investigation process and the rights and responsibilities involved. Here are some common inquiries:

  1. What’s the deal with workplace investigations, and why do we need them? Workplace investigations are a crucial aspect of maintaining a safe and fair work environment. Based on the information from the provided link, here’s a summary of the importance and nuances of workplace investigations:
  2. Who kicks off these investigations, and what’s the motivation behind them? Workplace investigations are typically initiated by employers, employees, third parties, or regulatory bodies. The primary motivations behind these investigations include addressing specific employee complaints, ensuring legal compliance, maintaining a safe work environment, and upholding the company’s reputation. By conducting thorough investigations, companies aim to mitigate risks, protect employee rights, and ensure procedural fairness in addressing potential misconduct or concerns.
  3. What are the typical steps involved in a workplace investigation? A workplace investigation typically begins with receiving and documenting the complaint or allegation. This is followed by determining the need and scope for an investigation and selecting an impartial investigator. The investigator then gathers evidence through interviews and document reviews, analyses the findings, and drafts a report. Based on the findings, appropriate action is taken, and the outcome is communicated to relevant parties.
  4. Who’s qualified to lead an investigation, and what kind of experience should they have? The individual leading a workplace investigation should be impartial and possess expertise in the area of the complaint. Ideally, they should have a background in human resources, law, or a related field with experience in conducting investigations. Familiarity with employment laws, company policies, and industry-specific regulations is crucial. Strong interpersonal and communication skills are also essential to effectively interview witnesses and document findings.
  5. What are the rights of employees during an investigation, and how can they protect themselves? Employees have the right to be informed about the nature of the investigation, to be treated fairly and impartially, to have a support person present during interviews, and to confidentiality. They can protect themselves by being informed about company policies, seeking legal or union advice, documenting interactions, and cooperating fully while ensuring their rights are upheld.
  6. How can employees best prepare for an investigation, and what should they expect? Employees can best prepare for an investigation by gathering relevant documents, making notes of events or interactions related to the complaint, seeking representation, and familiarising themselves with company policies. They should expect to be interviewed, have their statements documented, be treated fairly and impartially, and be informed about the investigation’s outcome.
  7. What happens after the investigation is complete, and what are the possible outcomes? After the investigation is complete, a report detailing the findings is usually prepared. Based on the findings, outcomes can vary: the allegations might be substantiated leading to disciplinary actions against the accused, such as warnings, training, suspension, or termination; the allegations might be unsubstantiated, resulting in no action; or there might be recommendations for broader workplace interventions like training sessions or policy reviews. Additionally, if the complaint was found to be maliciously fabricated, the complainant might face consequences.
  8. Are there consequences for employees or employers involved in an investigation? Yes, both employees and employers can face consequences following an investigation:
  9. If an employee feels they’ve been treated unfairly during an investigation, what are their options? If an employee believes they’ve been treated unfairly during an investigation, they can first seek an internal review or appeal within the organisation to address their concerns. For those affiliated with a union, consulting with a union representative can provide guidance and support. Additionally, employees can consult with a representative such as ourselves. Taking these steps can help ensure that the investigation process is just and that the employee’s rights are upheld.
  10. Where can employees turn for advice and support during this process? Employees can turn to several sources for advice and support during an investigation process. They can consult their company’s human resources department, which should provide guidance on the investigation procedure. Union members can seek assistance from their union representatives. Lawyers can offer advice on rights and potential courses of action or experienced Fair Work representatives such as our team at AWNA. Additionally, employees can reach out to employee assistance programs (EAPs) for emotional support or counselling.
looking close at employment contract clause

Employee Rights Differences Across States

What Factors Drive the Differences in Employee Rights Among Australian States?

Did you know that employees’ rights during workplace investigations can vary greatly across different Australian states and territories?

Although national employment laws establish minimum standards, each region also has its own set of rules that govern the workforce. Consequently, there can be significant differences in employee rights, covering everything from minimum wage to leave entitlements and termination of employment.

Let’s dive deeper into some of the key variations you need to know:

  1. Minimum wage: Don’t assume that the federal minimum wage applies across the country. Each state has its own minimum wage that employers must adhere to. Be sure to check your state’s minimum wage to ensure you’re being paid fairly.
  2. Leave entitlements: Sick leave, annual leave, and long service leave can all vary by state. Know your entitlements in your state or territory to make sure you’re getting the right amount of time off.
  3. Termination of employment: Different states have different notice periods and restrictions that employers must follow when terminating employees. Make sure you know your rights and legal options in case of wrongful termination.
  4. Industrial relations: The industrial relations system can also differ between states, with some having a centralized system while others have a more decentralized one. Knowing how the system works in your state or territory can help you navigate workplace conflicts and disputes more effectively.

Empowering yourself with knowledge about the laws and regulations that apply to your state or territory is a crucial step in protecting your employment rights. By having a solid understanding of the specific laws and regulations that govern your workplace, you can make informed decisions about your employment, such as negotiating fair pay, leave entitlements, and advocating for your rights. Don’t let unfamiliarity with the law leave you vulnerable – take the time to learn about the laws and regulations that affect you, and be confident in asserting your rights in the workplace.

National laws that provide minimum standards of employment across Australia include:

Australia’s employment laws and regulations offer a robust framework that guarantees the rights of employees and promotes a secure and equitable work environment. These laws are vital for creating a fair and just society that values the dignity of work and the contributions of workers.

Here are some of the critical laws that make up Australia’s employment framework:

  1. The Fair Work Act is the foundation of Australia’s employment framework. It sets out the minimum standards for employment conditions, including minimum wage rates, leave entitlements, and termination of employment. This act helps to ensure that employees are paid fairly and have access to basic entitlements such as leave and termination rights.
  2. The National Employment Standards (NES) build on the Fair Work Act by establishing minimum entitlements that apply to all employees in Australia. These entitlements include annual leave, personal/carer’s leave, compassionate leave, and public holidays. The NES ensures that all workers are entitled to basic benefits, regardless of their industry or occupation.
  3. Australia’s anti-discrimination laws are another crucial aspect of the country’s employment framework. These laws protect employees from discrimination based on factors such as race, sex, age, disability, and other attributes. Employers are prohibited from discriminating against employees and must ensure that their policies and practices are free from discriminatory behaviour. These laws help to create a more inclusive and diverse workplace culture.
  4. Occupational health and safety laws require employers to provide a safe working environment for their employees. Employers are responsible for identifying and managing workplace risks and hazards, providing adequate training and protective equipment, and maintaining a safe work environment. By adhering to these laws, employers can help to ensure that their employees are safe and healthy while on the job.

If you want to ensure that your workplace rights are protected, it’s important to have a good understanding of the laws that apply to you. That means not only national laws but also state-specific laws that might affect your employment.

But let’s face it – employment law can be confusing and overwhelming, especially if you’re not familiar with legal vocabulary. That’s why it’s a great idea to consult an employment lawyer if you have any questions or concerns about your rights as an employee.

Employment lawyers can help you understand your rights under the law and ensure that your employer is following all relevant regulations.

Don’t hesitate to reach out to an employment lawyer if you have any concerns about your rights as an employee. It’s always better to be proactive and protect yourself, rather than waiting until an issue arises and then trying to deal with it on your own.

workplace investigation employee rights

Workplace Investigation Laws Different Across Australian States and Territories When it Comes to Employee Rights

As an employee in Australia, you have the right to be treated fairly during a workplace investigation. However, did you know that your rights may differ depending on the state or territory you work in? While there are minimum standards that apply nationally under the Fair Work Act 2009, each state or territory may have additional protections for employees.

For example, in Victoria, the Charter of Human Rights and Responsibilities Act 2006 outlines the human rights that must be respected during a workplace investigation. This means that the investigation must be conducted in a way that is fair, transparent, and respects your rights as an employee.

Understanding the Additional Employee Protections in Each Australian State and Territory

As an employee in Australia, it’s important to know that your rights during a workplace investigation may differ depending on which state or territory you work in. Each jurisdiction has its own legislation outlining the responsibilities of both employers and employees during investigations.

In Victoria, for instance, the Charter of Human Rights and According to the Responsibilities Act of 2006, workplace investigations must uphold certain human rights.

These rights include:
  • The right to privacy
  • The right to a fair hearing
  • The right to equal treatment

Meanwhile, in New South Wales, the Workplace Surveillance Act 2005 governs the use of workplace surveillance and outlines the circumstances under which audio and video recording may be considered lawful.

In South Australia, the South Australian Employment Tribunal has the authority to hear claims of workplace bullying and harassment, and may even order compensation or reinstatement of an employee.

By knowing your rights and seeking guidance if needed, you can ensure that any potential violations are addressed and that you are treated fairly and lawfully during a workplace investigation.


Navigating the Steps of a Workplace Investigation

Both employees and employers tend to have questions and concerns about workplace investigations and the associated rights and obligations. If you’re curious, you’re not alone! The steps involved in a workplace investigation can vary depending on the specific issue, but they often include:

  1. Planning and Preparation: This initial step involves defining the scope of the investigation, identifying potential witnesses, and gathering any relevant information or documents that may be needed. This stage is vital to ensure that the investigation is focused and efficient.
  2. Gathering Evidence: In this stage, the investigator conducts interviews with eyewitnesses, reviews documents and other proof, and collects any further information that may be relevant to the investigation. This helps to build a complete picture of what happened and who was involved.
  3. Analysis of Evidence: The information collected during the investigation is then analysed and assessed to determine the facts of the situation. This stage involves inspecting and cross-referencing evidence to build a clear understanding of what took place.
  4. Determining Findings: Based on the evidence gathered, the investigator reaches conclusions about the events in question and identifies any potential breaches of policy, procedure, or law. This step helps to determine what, if any, action needs to be taken in response to the situation.
  5. Report Preparation: Once the investigation is complete, a written report is prepared to document the findings. This report should include a summary of the evidence and a clear conclusion outlining what happened and what the potential consequences may be.
  6. Recommendations: Based on the findings of the investigation, recommendations are made for any necessary corrective measures. This step is essential in ensuring that similar situations do not occur in the future.
  7. Implementation: Finally, follow-up action is taken to execute any necessary corrective measures. This may involve disciplinary action, policy changes, or other forms of intervention as needed.

What if the allegations against me seem false or unfair?

If the allegations against you seem false or fabricated, it may be a good idea to bring your concerns to your employer’s attention, such as through a formal response to the allegations, which you should be invited to provide. Any evidence that you have to support your claims can be beneficial in having the allegations found to be unsubstantiated.

That being said, some employers may deliberately create false allegations in an effort to force an employee out of their employment, despite the unethicality of such behaviour. It is wise to be wary of such conduct by employers, as if there is no evidence to show that you did engage in the misconduct and your defence is not being listened to, it is possible that your employer is trying to push you out of your job. Read more about unfair dismissal here.

Is my employer denying me procedural fairness?

If you think the allegations against you are fabricated or unfair, look out for other signals that you have not been afforded procedural fairness in the investigation. For example:

  • Using definitive legal language to describe the allegations when there has not yet been a determination on whether the allegations were substantiated.
  • Not providing adequate documentation or notice of allegations or meetings.
  • Other employees have previously been treated in a different way for similar conduct.[6]
  • The employer has raised other allegations about unrelated past or trivial conduct.[7]
  • The investigation is being conducted by a key witness to the incident, resulting in a conflict of interest.[8]
  • The employer unreasonably refused a request to postpone a meeting to enable a support person to attend, especially where such postponement would not be difficult for the employer to accommodate.[9] However, note that if the employer provided sufficient notice of the meeting but the employee provided short notice to reschedule, the employer may not be found to have acted unreasonably.[10]
  • The employer has already made a decision on the allegations. This may be indicated by a pre-drafted termination letter that is given to you immediately after your response.
  • You have been dismissed even though the investigation has not concluded (e.g. not all employee witnesses have been interviewed yet).[11]
thinking about a workplace investigation and steps involved

When might an employer’s conduct be reasonable?

An employer may conduct a workplace investigation because they have a genuine concern for the company and its employees. An employer inherently holds a duty to protect its employees, and therefore if any complaints are made about another employee about a serious matter such as bullying, sexual harassment or fraud, the employer is under a duty to investigate to prevent further harm.

Under the Fair Work Act 2009, employers ultimately have broad powers to take ‘reasonable management action’ when conducting workplace investigations, which does not have a specific legal definition and it is rather at the employer’s discretion what they deem to be ‘reasonable’. This means there is no set criteria that an employer must follow when conducting workplace investigations, which may mean knowing whether an employer has acted unreasonably can be difficult.

What if my alleged conduct occurred outside of work hours?

You can only be subjected to a workplace investigation for conduct that occurred in the workplace, or in connection to your employment. For example, if you engaged in misconduct at a work function, you can be subjected to an investigation for this conduct. Another example is sending messages to other employees out of hours, such as in the case of Colwell v Sydney International Container Terminals Pty Limited[12], where an employee was investigated and subsequently terminated for sharing a pornographic video via Facebook Messenger to 19 work colleagues.

Does the employer need to provide details of the allegations?

Prior to a decision being made on whether the allegations have been substantiated and disciplinary action be imposed, you must be provided with details of the particular allegations against you. If you do not receive a copy of the allegations, stated in a clear and precise manner, you are not receiving procedural fairness, as you are therefore unable to defend yourself.

However, it is not uncommon for employees to first be notified that they are being stood down (or suspended) pending investigation, without receiving a copy of the specific allegations. This is not unreasonable. Usually, the employer must commence the investigation procedure to be able to particularise the claims against the employee, such as by finding out dates, names and any other specifics. As long as you receive the allegations before a decision is made and have adequate time to respond, then your employer is likely exercising ‘reasonable management action’.

Does the employer need to specify the identity of their witnesses?

Typically, witnesses to a workplace investigation cannot participate anonymously, as their identity is important for the investigated employee to be able to respond to the allegations against them.

However, where a witness has provided information that is consistent with information provided by other witnesses, then their participation in the workplace investigation may not be required to be disclosed. Conversely, where a witness has provided information that is inconsistent with evidence provided by other employees, then it is unlikely that their identity should remain confidential.

Can I view CCTV footage of the incident?

If the allegations are based on CCTV footage, you should be permitted to view the footage so that you are able to adequately respond to the allegations. In the case of Mulhall v Direct Freight (Qld) Pty Ltd t/a Direct Freight Express,[13] the employee was dismissed from his employment on the basis of “flimsyCCTV footage, which the employee was never allowed to view. Commissioner Simpson determined that denying the employee the opportunity to view the CCTV footage was not procedurally fair.

workplace investigations - what are my rights?

I don’t think I have been treated fairly, what can I do from here?

 If the workplace investigation is ongoing, you can take action in the Fair Work Commission to prevent unjust disciplinary action or termination. This would most likely be through a General Protections (Not Involving Dismissal) Application (Form F8C), if you can show that the investigation has commenced for a discriminatory reason or in retaliation to you exercising a workplace right.

If the workplace investigation has concluded and you have returned to work but in an unfavourable manner, you may also be able to pursue a General Protections (Not Involving Dismissal) Application (Form F8C).

If the workplace investigation has concluded and you have been dismissed from your employment, you may be eligible for an Unfair Dismissal Application (Form F2) or a General Protections (Involving Dismissal) Application (Form F8).

In any of these circumstances, A Whole New Approach can provide you with assistance to achieve the outcome you deserve! Call 1300 766 700 for an obligation-free consultation to discuss your options and see whether you can commence a claim in the Fair work Commission. We work in all states, including Victoria, NSW, QLD, SA, WA, TAS

By Gary Pinchen.

We are A Whole New Approach P/L we have been voted Australia’s leading workplace advisors by our clients. We are not lawyers, however we are experts in anything to do with the workplace, we are a great place to start with your knowledge journey, wanting further information, lodging a unfair dismissal or general protections claim. Make the call today to us, its free, confidential, prompt. 

References:

[1] IGA Distribution (Vic) Pty Ltd v Nguyen [2011] FWAFB 4070.

[2] O’Keefe v Williams Muir’s Pty Ltd T/A Troy Williams The Good Guys [2011] FWA 5311.

[3] Grant v BHP Coal Pty Ltd [2014] FWCFB 3027.

[4] Flanagan v Thales Australia Ltd t/a Thales Australia [2012] FWA 6291.

[5] Colwell v Sydney International Container Terminals Pty Limited [2018] FWC 174 (Commissioner McKenna).

[6] APS Group (Placements) Pty Ltd v O’Loughlin [2011] FWAFB 5230, [59]–[61].

[7] Lupson v Australian Pacific Airports (Melbourne) Pty Ltd [2020] FWC 6721 (Deputy President Mansini).

[8] Emery v City of Stirling [2018] FWC 914.

[9] Laker v Bendigo and Adelaide Bank Limited [2010] FWA 5713 (Lewin C).

[10] Jelea v Sunstate Airlines (Queensland) Pty Ltd T/A Qantas Link [2012] FWA 1360.

[11] Horan v Tren Trading Pty Ltd t/a Dubbo Early Learning Centre [2019] FWC 3249 (Deputy President Sams).

[12] [2018] FWC 174.

[13] [2016] FWC 58.