Workplace Investigations
Workplace investigations typically arise when a business receives a complaint, identifies that an employee may have engaged in serious misconduct, or finds that an internal issue has begun to affect the working environment and the orderly management of the business. Common situations include workplace bullying, sexual harassment, discrimination, theft, fraud, conflicts of interest, breaches of company policy, serious dereliction of duty, or formal complaints between employees.
For an employer, mishandling an investigation can allow an otherwise manageable issue to escalate, and can give rise to unfair dismissal claims, general protections applications, discrimination complaints, workplace psychological injury claims, or other employment disputes. For an employee, receiving a notice of investigation can also have a direct impact on their work, professional reputation and ongoing employment relationship.
NS Legal can assist employers to conduct or manage workplace investigations, and can also assist employees to respond to a notice of investigation, prepare response materials, and provide legal advice during an investigation, disciplinary action, mediation or subsequent employment law proceedings.
Workplace Investigations
A workplace investigation is an internal or external investigative process conducted by an employer to establish the facts, deal with a complaint, or assess an employee’s conduct.
The purpose of an investigation is usually to confirm whether an allegation has a factual basis, and to decide whether any subsequent management action is required. For example, whether a warning, training, mediation, a change of role, disciplinary action or termination of employment is needed.
Workplace investigations are not confined to the office or the place of work. Company events, business travel, work chat groups, work-related social occasions, and even conduct that occurs outside working hours and away from the workplace but has a sufficient connection to the employment relationship, may also become the subject of an investigation.
When an Employer Receives a Formal Complaint
If an employee makes a formal complaint, particularly one involving bullying, harassment, discrimination, sexual harassment, victimisation or serious misconduct, the employer generally needs to take it seriously and consider whether an investigation should be commenced.
Ignoring a complaint, dealing with it carelessly, or putting someone with a conflict of interest in the matter in charge of the investigation can all lead to procedural problems.
When Serious Misconduct Is Involved
When an employee is accused of theft, fraud, violence, a serious safety breach, a serious breach of policy or other conduct that may lead to summary dismissal, an investigation is usually very important.
Before taking serious disciplinary action, an employer needs to first establish the facts and the evidence, and give the employee a reasonable opportunity to respond.
When Senior Employees, Management or the Company Itself Are Involved
If the person complained about is a senior employee, a manager, a human resources staff member or a director, or if the complaint concerns the company’s management, an internal investigation is more easily challenged as lacking independence.
These situations usually require more careful consideration of who should conduct the investigation, how evidence should be preserved, how to protect both the complainant and the employee under investigation, and how to avoid any subsequent process being regarded as unfair.
When External Bodies, Insurers or Regulatory Requirements Become Involved
Some workplace incidents may involve workplace injury, psychological injury, a safety incident, an insurance claim or an external complaint. In such cases, a business may need to organise the facts, preserve records, and where necessary cooperate with an external process.
How Employers Conduct a Workplace Investigation
What to Prepare Before an Investigation
Before commencing an investigation, an employer should first clarify the scope of the investigation and the objectives for dealing with the matter. The following are usually needed:
- the content of the complaint or a preliminary statement of facts;
- the employee’s contract, position description and relevant policies;
- documents relating to bullying, harassment, discrimination, equal opportunity or the code of conduct;
- records of any internal communications or actions already taken;
- materials relating to the complainant, the person complained about and witnesses;
- whether a temporary change to roles, reporting relationships or work arrangements is required;
whether the employee should be suspended on full pay pending the outcome of the investigation.
Before an investigation begins, a business also needs to consider its confidentiality obligations, information access permissions, the preservation of evidence and the independence of the investigators.
What Steps Does an Investigation Usually Involve
A workplace investigation usually includes the following stages:
- confirming the complaint or the matter to be investigated;
- reviewing the relevant contracts, policies and background documents;
- notifying the relevant people of the matter under investigation and the procedural arrangements;
- interviewing the complainant, the employee complained about and any necessary witnesses;
- collecting emails, chat records, access-control records, surveillance footage, work records or other evidence;
- giving the employee under investigation an opportunity to respond to the specific allegations;
- making further enquiries into any newly discovered information;
- making findings of fact based on the evidence;
- preparing an investigation report or a statement of outcome;
deciding on subsequent management action based on the outcome of the investigation.
The investigation process needs to be fully documented. Every meeting, notice, response, item of evidence collected and basis for a decision may be reviewed in any subsequent dispute.
Procedural Fairness
Procedural fairness is one of the most critical issues in a workplace investigation. The employee under investigation should generally know what they are being accused of, have an opportunity to respond to the allegations, and where reasonable be accompanied by a support person. The investigator should also remain impartial and should not reach a predetermined conclusion before the investigation is complete.
Procedural fairness usually involves:
- whether the allegations are clear;
- whether the employee is given sufficient time to prepare a response;
- whether relevant information and documents are provided;
- whether the employee is allowed to bring a support person to meetings;
- whether the views of relevant witnesses are heard;
- whether the investigator has any conflict of interest;
whether the conclusion is based on evidence rather than speculation or emotional judgment.
A lack of procedural fairness can affect the lawfulness of any subsequent disciplinary action, and can also become a significant issue in an unfair dismissal claim or other employment dispute.
How Employees Respond to a Workplace Investigation
What to Confirm First After Receiving a Notice of Investigation
After receiving a notice of investigation, an employee should first confirm the nature of the investigation, the content of the allegations, the timing of any meeting, whether a written response is required, and the potential consequences of the investigation.
Common matters to confirm include:
- whether they are the complainant, a witness, or the person under investigation;
- whether the allegations are specific;
- whether the employer has provided the relevant materials;
- whether a support person may be brought along;
- whether a written response must be submitted;
- whether the investigation meeting will be recorded;
the outcome of the investigation may lead to a warning, disciplinary action or dismissal.
An employee should not respond hastily without having clearly understood the specific allegations. For investigations involving serious misconduct, sexual harassment, bullying, fraud or matters that may lead to dismissal, it is advisable to obtain legal advice as early as possible.
How to Prepare Response Materials
When preparing a response, an employee should organise the facts, the timeline and the evidence around the specific allegations. Common materials include:
- emails, text messages and chat records relating to the incident;
- meeting minutes, work arrangements and task records;
- witness details;
- performance records and past feedback;
- relevant policies or training records;
- documents that help explain the context;
- the employee’s own response to each allegation.
Response materials should be as specific as possible, setting out the employee’s conduct and the reasons for it, and explaining the circumstances at the time as clearly as possible. If the allegations are unclear, the employee can ask the employer to provide further details of the specific facts and the basis for them.
Can an Employee Keep Working During the Investigation
Whether an employee continues to work depends on the nature of the matter, the risks associated with the role, the relationship between the parties, and the employer’s arrangements.
Some employees may continue to work as normal; some may have their role or reporting relationship temporarily changed; in serious cases, the employer may suspend the employee on full pay until the investigation is complete.
Suspension on full pay does not mean the employee has already been found to be at fault, but it may affect the employee’s reputation, levels of stress and working relationships. The employee should take care to keep the relevant notices and records of communication.
Investigation Outcomes and Next Steps
Depending on the outcome of the investigation, an employer may take a range of actions, including:
- a verbal or written warning;
- further training;
- mediation or repairing team relationships;
- adjusting reporting relationships or work arrangements;
- setting requirements for improved conduct;
- disciplinary action;
- termination of employment;
amending policies or strengthening internal management.
If the conclusion of an investigation would lead to serious consequences, such as summary dismissal, the employer should pay particular attention to the procedure, the evidence and the reasons for the decision. After receiving the outcome of an investigation or a notice of proposed disciplinary action, an employee should also promptly review whether there is still an opportunity to respond.
Independent Investigations
An internal investigation is not always suitable in every situation. If a complaint involves senior management, human resources staff, directors, multiple employees, serious bullying or harassment, potential media or regulatory risk, or if there is no suitable person within the business who can remain independent, an external, independent investigation is usually the safer course.
The value of an independent investigation lies in reducing conflicts of interest, increasing the credibility of the investigation’s conclusions, and helping the business to explain more clearly the basis for its actions in any subsequent disciplinary action, mediation or external process.
Risks of Mishandling an Investigation
If a workplace investigation is mishandled, it can give rise to further disputes.
For employers, common risks include:
- the employee bringing an unfair dismissal claim;
- the employee bringing a general protections or adverse action claim;
- discrimination, harassment or workplace psychological injury complaints;
- the complainant considering that the company has failed to provide a safe working environment;
- the employee under investigation considering that the process was unfair;
damage to internal trust and a deterioration in team relationships.
For employees, responding poorly to an investigation can affect disciplinary action, the outcome of a dismissal, professional reputation and the available avenues for an employment law complaint.
How NS Legal Can Assist
NS Legal can assist employers, employees and managers with matters relating to workplace investigations.
We can assist clients by:
- providing legal advice on whether an investigation should be commenced;
- assisting employers to define the scope and process of an investigation;
- reviewing employment contracts, company policies and relevant evidence;
- assisting employers to prepare investigation notices, meeting questions and subsequent decision documents;
- conducting or managing external, independent investigations;
- helping employees to understand a notice of investigation and the specific allegations;
- assisting employees to prepare written responses and supporting evidence;
- advising on suspension on full pay, support persons, confidentiality obligations and procedural fairness;
- assisting employers with post-investigation disciplinary action, mediation or rectification arrangements;
assisting employees with post-investigation warnings, disciplinary action, dismissal or other employment law disputes.
Workplace investigations often require decisions to be made within a short time frame, while also involving procedural fairness, the quality of the evidence and subsequent risk. NS Legal can help develop an appropriate approach based on the client’s circumstances.
Frequently Asked Questions
If I am notified that I am the subject of a workplace investigation, does that mean I will definitely be dismissed?
Not necessarily. The purpose of an investigation is to establish the facts. The outcome may be that the allegations are substantiated, partly substantiated, not substantiated, or that there is insufficient evidence. Whether you are disciplined or dismissed depends on the outcome of the investigation and the seriousness of the matter.
Can an employee ask to know the specific allegations?
An employee should generally know what they are being accused of and have a reasonable opportunity to respond. If the allegations are too general, the employee can ask the employer to specify the particular incidents, dates, conduct and the basis for them.
Can a support person be brought to an investigation meeting?
In many cases you can ask to bring a support person to the meeting. A support person is generally not there to answer questions on the employee’s behalf, but to provide company and support during the meeting.
Must an employer engage an external lawyer to conduct an independent investigation?
Not necessarily. Minor or straightforward matters may be handled by internal staff. However, where serious allegations, senior management, conflicts of interest or external regulatory risk are involved, an external, independent investigation is usually the safer course.
What does it mean to be suspended on full pay during an investigation?
Suspension on full pay is usually a temporary management measure and does not mean the employee has been found to be at fault. An employer may have an employee temporarily leave the workplace for reasons relating to the needs of the investigation, the protection of evidence, workplace safety or team relationships.
After receiving a warning or notice of dismissal following an investigation, can I still lodge a complaint?
You can first review the investigation process, the evidence, and whether the disciplinary action was reasonable, as well as whether there is an unfair dismissal claim, a general protections application, a discrimination complaint or another employment law avenue. Different claims may have different time limits.
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