Rights of employees under investigation

McDonald Murholme provides essential advice to anyone facing a workplace investigation. No employee should participate in a workplace investigation without proper legal advice. That advice should insist that:

The employee is told whether or not the workplace investigation is independent or not. Ideally, workplace investigations should be independent and an employee should insist on this. Often workplace investigations are said by the employer to be independent but are not. Independent is defined as:
1. - free from outside control; not subject to another’s authority
  - not influenced by others; impartial
  - not connected with another or with each other; separate
  - capable of thinking or acting for oneself
  - an independent person or body
Workplace Investigations must be transparent. Often they are not. To be transparent, the investigator must disclose the terms of reference for the investigation.
The wording of the allegation/charges be specific. Often the wording is vague and indecipherable.
The allegations must not be duplicated unnecessarily. Often one allegation is expressed as multiple allegations to confuse and distress the employee under investigation.
The employee must be given natural justice. This includes fairness, the right to be heard, and responses to listened to or taken into account. Often the employees’ responses are ignored or disregarded.
The evidence on which the allegation(s) are made should be disclosed in an uncensored form. Often the investigator is given a distorted version of the facts or statements by others supporting the allegation.

McDonald Murholme is ready to assist any employee facing the above issues and more with fast and efficient service. Workplace Investigations are often sprung on an employee at short notice causing great distress. The employee is frozen out of the workplace, told not to contact anyone, and left in suspense for a few days. Such employees often resign due to fear of the unknown, thereby ending their employment without proper payment being made to them.

Workplace investigations often pretend to be fair by finding some allegations substantiated and others not. This gives the employee the impression that they were listened to but still allows the employer to sack or discipline the employee. The Fair Work Commission often considers evidence of the workplace investigation and the findings of the investigation, even if not independent. Such findings can have a seriously negative impact on an employees claim before the Fair Work Commission whether for unfair dismissal, or workplace bullying.

Speak to a lawyer who has acted for thousands of employees like you.

You should ask your employer for the exact nature of the allegation(s) and ask for a reasonable time to respond. In your response, you should raise an employment complaint regarding the false allegations.

You should also take a support person to any investigatory or disciplinary meeting.

There is no obligation for an employer to offer an employee the opportunity to have a support person at a disciplinary meeting. However, if the matter results in a claim being heard by the Fair Work Commission, it may look unfavourable for the employer to not have been accommodating of the employee’s request for a support person.

In the case of Laker v Bendigo and Adelaide Bank Limited, the employer refused the employee’s need to postpone a meeting to another date to allow for the attendance of their support person. The Fair Work Commission held that this request by the employee was not an unreasonable burden on the employer and therefore their failure to reschedule was unfair. Despite this, there are circumstances where the employer’s refusal may be appropriate, particularly where the notice to reschedule was provided on short notice. In Jelea v Sunstate Airlines (Queensland) Pty Ltd T/A Qantas Link, the Fair Work Commission found that the employer had provided adequate notice for the disciplinary meeting and that given the employee had provided short notice to reschedule, there were no grounds to find that the employer had unreasonably refused to allow a support person to assist the employee.

Simply put, if you have been given short notice, then the employer should be willing to reschedule the meeting to provide you with an opportunity to organise a support person. It is only in the instance where you have already been provided ample notice, that the expectations of the employer to accommodate your circumstances are reduced.

An employer must provide and maintain a safe work environment. Part of this duty may see employers reducing any health and safety risks which may be caused by the influence of drugs and alcohol in the workplace.

If the employer has reasonable cause to believe that an employee is at risk of impairment due to the consumption of drugs or alcohol, an employee will be obliged to comply with the test. The employer will need to provide the indicators which led them to have a reasonable cause to believe that there was a risk.

For example, if the incident in question relates to a potential OH&S breach or if the employee in question has bloodshot eyes or has an odour of alcohol.

The definition of the ‘workplace’ may extend further than the office premises to include out of office conduct. Any individual who is involved in work-related activities in and in connection to, that workplace is subject to the workplace policies. Depending on the circumstances and connection to work, the out-of-office actions may still constitute a breach of the workplace policy.

For example, if misconduct occurred out of office hours at a work-related function with employees from the workplace, the definition of the ‘workplace’ may extend here as the employer is reasonably connected to aspects of this event.

May 12, 2021 Employmentlawyers

Were you a victim of unlawful termination due to biased workplace investigation? Are you considering opting for employment lawyers Perth? Read this to understand why it is vital to seek legal assistance from workplace investigation lawyers in Perth. Below we provide a detailed summary of workplace inspections and how to deal with them if you are a victim.

What Is Workplace Investigation?

A workplace investigation refers to a process in which an employer sets out to inspect an alleged employee for misconduct. Such an investigation arises out of complaints made about the occurrence of the act. In such a circumstance, if an employee is found guilty, he is liable for termination.

Why Do We Need Workplace Investigations?

A workplace investigation is necessary for the following reasons:

To maintain mutual trust and confidence among workers of different positions in a particular company
To deal with cases of workplace harassment and discrimination
To support transparent and fair functioning of the workplace
To ensure employee satisfaction and safety
To ascertain compliance with workplace rules and regulations
To establish zero-tolerance against misconduct
To enforce and maintain employee inclusivity

How To Conduct An Effective Workplace Investigation?

To conduct a workplace investigation that is fair and authentic, one needs to keep the following factors in mind:

Establish effective communication with employees. This will ensure transparency while dealing with complaints. A detailed and open complaint can help the employer understand the situation better and take appropriate action.
Make sure that the employees in charge of the investigation are unbiased and objective. A fair verdict can only be provided if fairness is ensured throughout the process.
Carry out necessary interviewing sessions. Ensure that the interviews are being held only to seek the truth. Any other motivation may ruin the aim of conducting an effective investigation.
Assess both sides of the story. Choose a side based on only credibility and evidence. Biasedness and favouritism can corrupt a fair inspection and cause unnecessary trouble.

What Rights Can One Exercise During The Event Of A Workplace Investigation?

An employee unaware of their rights can fall victim to unfair termination due to a biased workplace investigation. Thus, it is essential to know your rights and exercise them when required. The workplace investigation employee rights include;

Receive a detailed written report from the employer on the complaint made against you before a discussion
Receive a detailed brief on all the potential negative factors that an employer may use to determine your involvement
Get sufficient time to respond to the complaint and brief in writing
Have your response considered before getting to a final decision
Bring an acquaintance for support during interview meetings
Have the investigation conducted by an unbiased authority or someone unrelated to the complaint
Hand over the final decision making to an impartial authority or someone unrelated to the complaint

What Should A Good Response To The Complaint Entail?

An excellent response to a complaint can save you from termination while being held guilty of said misconduct. Let’s read on to find out the components of a good response.

A detailed and systematic summary of the event occurrences concerning the complaint.
Provide a detailed outline of what you did, saw, and encountered for a proper analysis
Do not mention emotional statements or legal references while writing a response.
Include a personal statement discussing your feelings about the complaint. Talk about your workplace commitment record. Mention an apology if required.

It is in the best interests of an employee been notified of a complaint to consult a lawyer. Talk to workplace investigation lawyers and get legal assistance. They are experienced and know the strategies that can be employed to keep you safe.

Should One Handle A Workplace Investigation All By Themselves Or Opt For A Lawyer?

Irrespective of whether you are an employer holding the investigation or a victim, getting legal assistance is recommended. The following are the main reasons why hiring an experienced lawyer is your best bet:

Fair Investigation – A lawyer can help to ascertain that the investigation process is being fair. This ensures justice and fairness. In the case of a victim, a proper decision will save him from unlawful termination. In case of the complainant being a victim, a fair verdict will strengthen confidence.
Restraint Unnecessary Outrage – A lawyer can effectively come to the rescue of an ongoing retaliation in response to a complaint. In some cases, where the accused is in a top position, there may be outrage. This happens due to favouritism amongst colleagues or employees.
Strategic Planning – A lawyer can help you with a streamlined plan structure while writing a response to a complaint. If you are the employer, a lawyer can guide you with appropriate steps to ensure a fair assessment.

Now you know what to do in a workplace inspection scenario if you are the victim. It is necessary to know your rights to use them wisely. In situations of utter confusion, it is best to seek legal aid. While you choose from the best employment lawyers in Perth, make sure that you are licensed and experienced.

Rights of employees under investigation

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