Investigated For Misconduct In Your Workplace
It can be a difficult and stressful period when you are told by your employer that you are being investigated for misconduct in your workplace. However, you have certain rights throughout the investigation process so you can be sure that the workplace investigation is conducted fairly and without prejudice to you.
Here are some right to be aware of when and if a workplace investigation is being conducted against you:
- You have the right to attend a meeting with your employer to discuss the allegations against you, as well as the outcome of the investigation. You only need to follow any ‘lawful and reasonable’ directions of your employer. For example, you can refuse to attend the meeting if:
- You are sick;
- The meeting is outside of working hours; and
- You have other parental or carer commitments
- Although you have the right not to attend the meeting, it will be difficult to raise any further complaint as to the conduct of the meeting if you were dismissed.
- You have the right to have a support person attend the meeting with you. The support person may only be allowed to listen to the meeting as your witness, and may not be allowed to speak on your behalf.
- You have the right to record the meeting only if all people present at the meeting agree. There are serious legal consequences if you record the meeting without a person’s consent.
In addition, your employer has the following powers and responsibilities when choosing to conduct a workplace investigation:
- Your employer can choose to suspend you from work until the investigation is finalised. It is important that you check your award or enterprise agreement to enquire whether your employer has the right to suspend you without pay.
- Your employer has the responsibility to ensure that the investigation process in fair. This means that your employer should:
- Make you fully informed as to all details relating to the allegation of misconduct;
- Give you the chance to respond to the allegations;
- Follow any and all internal policies and procedures for the investigation process;
- Have an independent person conduct the investigation;
- Take into account all information provided by you and others; and
- Make a decision within a reasonable time.
- Your employer has the power to obtain information from a number of sources, such as:
- Other work colleagues;
- CCTV surveillance footage;
- Photographs; and
- If your employer wants to monitor your email and internet use, they must provide you 14 days written notice of their intention to do so.
- If the investigation involves an allegation that is also deemed to be a criminal offence, your employer has the responsibility to pass on any information or statement presented by you. These statements can be used against you in Court. Your employer also has the right to enforce their own disciplinary action against you, even if you are found not guilty by a Court.
When the investigation concludes, your employer may also decide to give you a warning letter. If you believe that the warning letter is unfair to you, then you should respond to it in writing.
If you feel that, following the workplace investigation, you have been unfairly dismissed, then you may be able to make the following claims:
- Unfair dismissal;
- General protections claim; or