Factsheet: Workplace Investigations and Independent Investigators

Setting the Scene

In general, an employer will conduct a Workplace Investigation when they receive direct allegations as to an employee’s behaviour or conduct when carrying out their duties, or an employer may have a ‘reasonable’ concern about employee conduct or performance.

An employer also has what is known as ‘managerial prerogative’ which is a broad-based discretion to take ‘reasonable management action’ with respect to employees of the business. This includes being able to require that an employee answer questions with respect to allegations that have been made against them, or ‘concerns’ about their conduct or performance that the employer may hold.

That said, for such action to be ‘reasonable management action’ an employer is required to follow a proper process including, where applicable, following the principles of Procedural Fairness.

Procedural Fairness

It is only via legislation, industrial instruments (Modern Awards and Enterprise Agreements mainly), contractual terms, and decided cases with respect to Unfair Dismissals that expectations of Procedural Fairness have become part and parcel of what is expected in a ‘proper’ Workplace Investigation.

As such, a proper Workplace Investigation process should normally involve the employee under investigation:

• Having the concerns or allegations put to them in writing,
• Being given sufficient time to consider their response to those concerns or allegations before being asked to answer questions about them at an interview,
• Being allowed to have a support person (who may be a friend or union representative) present at the meeting, and
• Being entitled to have their responses to the concerns or allegations against them considered before a final decision is made as to findings and possible disciplinary action.

Often employers will have well established policies concerning disciplinary matters or workplace investigations that will provide a checklist for Managers, Supervisors, or HR to follow to ensure that Workplace Investigations are conducted properly so that if an employee is ultimately disciplined or dismissed they will not be exposed to undue legal risk due to that action.

Representation vs Support Person

There is a degree of difference that you need to be aware of between the concept of someone who is your ‘representative’ and someone who might be known as your ‘support person’, when it comes to a Workplace Investigation. In a Workplace Investigation interview you are entitled to have a ‘support person’ present, and that person can even be a ‘representative’ of your Union or Professional Association.

However, that person (whoever they are) cannot advocate in an unfettered way on your behalf or answer questions for you during a Workplace Investigation interview, and as such are prevented from acting on your behalf in the same way a ‘legal representative’ might do in court. That said, some employers (but not all), and many independent investigators employers occasionally appoint, will often grant more latitude to Union or Professional Association representatives to be more actively involved in discussions about the matter as they acknowledge their expertise in this regard.

How Should I Approach a Workplace Investigation?

As already mentioned, you should have notice of the allegations or concerns against you before you are asked to meet with someone to discuss them or answer questions about them. But what should you do if you find yourself in a meeting where allegations are being put to you and your response is being sought?

If you find yourself in such a meeting you should say nothing about the substance of the concerns or allegations being put to you. You should repeatedly say that you are only too happy to answer any questions or concerns your employer or the investigator has once they are put to you in writing. You should also indicate that you say this because you want to be sure you answer them properly and don’t misunderstand them.

You should contact Professionals Australia as soon as you are able so we can provide you with some advice and feedback on how you might attack the process of responding to the concerns or allegations that have been put to you. Part of contacting us should be providing us by email with any allegations as set out in writing by your employer, and any other documents that might help us understand the matter. This will help us turn our mind to a plan of attack and the possible advice we might provide before the first phone conversation we have.

You should be aware from the outset that unlike a criminal investigation the Standard of Proof that the investigation must reach is the ‘Balance of Probabilities’ as opposed to ‘Beyond Reasonable Doubt’. This lower Standard of Proof means that to find an allegation or concern sustained it must only be shown that it is more probable than not it is true.

The Outcome of a Workplace Investigation

Often employees are of the view that they will be clearly vindicated in the outcome of a Workplace Investigation, and sometimes this is the case. More often the outcome of a Workplace Investigation is a ‘mixed bag’ where some findings are made against the employee under investigation with allegations or concerns sustained, and some findings in favour of the employee where allegations are dismissed.

You need to be aware that there is a general rule that the more serious the disciplinary action proposed to be taken due to the findings made, the higher quality the evidence should be that stands in support of those findings. As such it will be somewhat easier for an employer to find an allegation or concern ‘sustained’ against an employee where they only propose to issue a written warning as a result than it will be if a finding of ‘allegation sustained’ is likely to lead to the dismissal of the employee being investigated.

Should you have any concerns as to whether the outcome of a Workplace Investigation is reasonable and proportional to the findings made then you should contact Professionals Australia to get some advice. That said, it can be quite difficult to have a disciplinary outcome short of the termination of your employment set aside by your employer, but it is nonetheless important that where you disagree on reasonable grounds with the outcome this is respectfully put in writing and on the record with your employer.

This factsheet has been provided by Professionals Australia.

This publication is considered general information only and is not intended to be relied upon as legal advice or as a substitute for legal advice. If you require advice on your specific situation, please contact your USU Organiser or our Support Team on 1300 136 604.

About the author – Stephen Chippindall

Stephen Chippindall is a Lawyer based in the NSW office of Professionals Australia and he works within a team responsible for assisting members working in the collective areas of membership of the Local Government, Water and Power Industries of NSW. Stephen provides legal and industrial advice to individual members from these industries regarding their workplace issues and regularly appears in the Fair Work Commission and NSW Industrial Relations Commission on their behalf. Stephen holds a Bachelor Arts(Asian & International Studies)/Bachelor Laws double degree from the University of Western Sydney (UWS) (completed 2007), a postgraduate Masters of International Relations (MIR) from Macquarie University (completed 2008), and a Graduate Diploma of Legal Practice (GDLP) from the Australian National University (ANU) (completed 2013). After completion of his GDLP Stephen was admitted as a Solicitor of the Supreme Court of NSW in 2014, entitling him to call himself a “lawyer”. Stephen is one of those strange people who list “work” as an interest or hobby, but outside of work he is also passionate about motorcycles, Mid-Century Modern architecture, seeing live music, and his pets (a Red Cattle Dog and two ginger cats).