Employee rights in workplace investigations

If you are told that you are under investigation in your workplace, you need to know your rights when facing a workplace investigation. An employer has a duty to investigate alleged misconduct and a duty to support you if your workplace conduct is under investigation.

Are workplace investigations serious?

If it is alleged that you have engaged in workplace misconduct, a workplace investigation will likely ensue, and the consequences can be serious.

Misconduct that often leads to a workplace investigation could involve allegations of:

• theft;
• fraud;
• bullying;
• discrimination;
• breach of workplace policy of safety procedures; or
• any matter deemed serious enough to warrant disciplinary action.

Employers have broad powers to take 'reasonable management action' when conducting workplace investigations. Reasonable management action is largely undefined but provides discretion as to what the employer deems to be 'reasonable'. This means there is no set criteria that the employer has to follow when conducting a workplace investigation, therefore making it difficult to determine whether the employer has acted unreasonably.

You can read more about this in our blog, "Am I being bullied or is it reasonable management action?"

Procedural fairness must be afforded during a workplace investigation

The key rule of procedural fairness is that if you are subject to a workplace investigation, you must be given a fair and reasonable opportunity to respond to the allegations before any final decision is made. This includes any new allegations that may arise in the course of an investigation.

In practice, this is difficult to clarify exactly, but can include:

• not framing the allegations to suggest a pre-determination of the issues;
• providing adequate documentation or notice of allegations to the worker;
• consistent treatment with the way other employees have been treated for similar conduct;
• not raising other allegations about unrelated past or trivial conduct;
• avoiding a conflict of interest by not having a key witness involved in the conduct of the investigation;
• postponing a meeting if required so that a support person can attend;
• ensuring that the investigation is fully concluded before a decision is made.

Do I have the right to see a complaint made against me at work?

Complaints may be made by another employee, including managers, or the employer themselves. An important aspect of procedural fairness is that you are provided with the details of the particular allegations (or complaints) against you. To not receive clear and precise allegations would make it difficult, if not impossible, for you to defend yourself.

Importantly, it is not uncommon for employees to be notified that they are being stood down (or suspended) pending investigation without receiving a copy of the specific allegations. This is not unreasonable as long as you receive the allegations before a decision is made and you are provided with adequate time to respond.

If the allegations are based on CCTV footage, you are permitted to view the footage so that you can respond to the allegations.

Can my employment be terminated without a workplace investigation?

In cases where the employee has admitted to serious misconduct such as, for example, theft, fraud or assault, the employer will likely summarily dismiss (immediately terminate) the employee without the need for a workplace investigation.

If, however, you were dismissed immediately or without a thorough workplace investigation and you feel that dismissal was unfair, you may be able to lodge an unfair dismissal claim. You should seek advice from your union or an employment lawyer.

Do I have to answer questions in a workplace investigation?

Whilst you do not have to answer the investigator's questions, it is your chance to tell your side of the story, and if the investigator asks you a question, it is because they believe the answer might be important to the investigation.

If you're unsure if you should answer any questions, you should seek advice from your union or an employment lawyer.

Can I have a support person, union rep or lawyer at my workplace investigation?

You can and should have a support person present during a workplace investigation interview. When determining cases of unfair dismissal, one of the factors the Fair Work Commission considers is whether the employee was unreasonably denied the right to have a support person present during interviews.

Standard of proof required in workplace investigations

Findings in a workplace investigation are made on the 'balance of probabilities', that is the civil standard of proof.

A fact is proven, on the balance of probabilities, if its existence is more probable than not or if it is established by a preponderance of probability.

Download As PDF

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.