McDonald Murholme provides essential advice to employers and employees about the value and conduct of workplace investigations. Such investigations can be an efficient and valuable assistance for an employer or an employee in the resolution of disputes and allegations in the workplace. Some of the things to bear in mind when involved in a workplace investigation are discussed below.
A. For an employer
A dispute between workers can be disruptive in a workplace with lots of finger pointing and time wasted in unproductive arguments often about trivial matters. Often an employer will not have time to sort out the issues. It might also have a close relationship with some, but not all, of the workers in the dispute. The engagement of an independent workplace investigator might appear to be costly, but if it results in a report back with the right advice, it is probably worth the cost.
An employer should instigate an investigation by a properly qualified workplace investigator, not a good friend who happens to be a lawyer and volunteers for the job to help secure the right outcome/the one the employer wants. There are many valuable workplace investigators who can be trusted to do an impartial investigation which will be very helpful to an employer in deciding on the future of an employee.
B. For an employee
No employee should participate in a workplace investigation without proper legal advice. That advice should insist that:
1. 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:
- 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
2. Workplace Investigations must be transparent. Often they are not. To be transparent, the investigator must disclose the terms of reference for the investigation.
3. The wording of the allegation/charges be specific. Often the wording is vague and indecipherable.
4. The allegations must not be duplicated unnecessarily. Often one allegation is expressed as multiple allegations to confuse and distress the employee under investigation.
5. 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.
6. 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.
Workplace investigations have become a popular way for a business to shield itself from being sued where there are conflicts within a workplace. Often workplace investigations are carried out by external consultants. The process can be valuable but is sometimes abused where the investigation is not independent/objective. An investigator employed by the company, paid by the company, with a secret brief from the company to achieve a pre-determined outcome, may make unfair findings against an employee. It might also fool an employee into resigning in fear of an unfair outcome.
There are some very good workplace investigators in Australia who would not be compromised but there are others whose investigations are superficial. It is worthwhile taking advice from a McDonald Murholme employment lawyer to see whether or not a workplace investigation is being carried out correctly.
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 purport 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.
The McDonald Murholme employment lawyer will also advise how an employee can best cooperate in an investigation to ensure that they are not found guilty by the investigator of false allegations against them.
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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.
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