Being the subject of a workplace investigation can be unsettling. Whether the allegations are minor or serious, the process can impact your reputation, wellbeing, and employment. This guide outlines the key steps to take if you find yourself under investigation at work in Australia.
Step 1: Understand What a Workplace Investigation Is
A workplace investigation is a formal process where your employer examines allegations of misconduct. These may include:
- Bullying or harassment
- Discrimination
- Breach of company policy or safety procedures
- Theft, fraud, or other serious misconduct
Employers have a legal obligation to investigate such matters fairly and impartially.
Step 2: Know Your Rights
The investigation should be carried out with procedural fairness in mind. This includes:
- Being informed of the specific allegations against you
- Receiving adequate time and documentation to prepare your response
- Having a support person (e.g. union representative, colleague, or lawyer) present during interviews
- Ensuring the investigator is impartial and not involved in the allegations
You may also be entitled to view relevant evidence, such as CCTV footage or written complaints, if they form part of the investigation.
If you require more time to prepare your response, ask for an extension. But don’t delay. If you require legal advice, seek help immediately.
Step 3: Don’t Panic – Get the Facts
When you’re notified of an investigation:
- Ask for the allegations in writing
- Request a copy of the investigation procedure or policy and any other relevant policies and procedures, and consider:
- whether they have been followed; and
- whether you received them or received training on them prior to the alleged conduct
- Clarify whether you are being stood down or suspended, and whether it is with or without pay
Being stood down or suspended without pay may be lawful in some cases, but it’s important to seek legal advice if you’re unsure.
Don’t be an Ostrich and stick your head in the sand. You should address the matter immediately. If you need legal advice, call a lawyer straight away.
Allegations of wrongdoing can be stressful. If you need mental health support, contact your employer’s EAP service or a counsellor or your doctor.
Step 4: Prepare Your Response Carefully
- Take time to review the allegations and gather any supporting evidence
- Prepare a written response that is factual and professional
- Include relevant documents or emails
- If persons witnessed what occurred, you may want to advise your employer of this
- If the allegations are serious and could amount to criminal conduct (e.g. theft, assault, fraud), be cautious about what you say. An employment lawyer can assist you regarding your employment rights, but where criminal conduct is alleged, you should consult a criminal lawyer before making any statement, as your response could have legal consequences beyond the workplace.
Step 5: Attend Interviews Professionally
- Bring a support person
- Ask your support person to take notes during the meeting
- Ask for clarification if questions are vague or unclear
- Stick to the facts and avoid discussing unrelated matters
This is your opportunity to present your side of the story clearly and calmly. You should take time to consider your responses, and you can ask for a break if you need one.
Step 6: Understand the Standard of Proof
Workplace investigations generally require that the allegations are proven on the balance of probabilities. This means the investigator must decide whether it is more likely than not that the alleged conduct occurred.
Step 7: Know the Possible Outcomes
Depending on the findings, outcomes may include:
- No action taken
- Informal counselling or training
- A formal warning
- Termination of employment
Before these steps are taken, particularly where termination is likely, you will likely receive a notice to show cause as to why the action proposed should not occur. Read about how to respond to a show cause notice here.
If you are dismissed without a fair investigation, you may have grounds for a claim. If you are covered by the Fair Work Act 2009, you may have a basis for an unfair dismissal claim or depending on the reason for the investigation, you may have general protections claim. If you are not covered by the Fair Work Act there may be other avenues available to you such as discrimination laws, state industrial legislation or contractually.
If you are dismissed, you must act quickly. Most claims will need to be brought within 21 days of the date of dismissal, often with little scope to obtain an extension. Read our other article about time limits in unfair dismissal claim here. If you are unsure consult a lawyer asap.
Word of Warning. If you are thinking about resigning, make sure you consult a lawyer first. In our experience, unless part of a negotiated settlement, rarely will resigning work in an employee’s favour, even if you think you have no other choice, and will generally limit your options to bring a claim or negotiate a settlement. Read about Constructive Dismissal here.
Step 8: Seek Legal Advice Early
If the process feels unfair or if you require help answering the allegations, contact:
- Your union
- An employment lawyer
- A criminal lawyer if the allegations amount to criminal conduct.
Legal advice can help protect your rights and guide your next steps.
Final Thoughts
Workplace investigations can be stressful, but they must be conducted fairly. Understanding your rights and responding strategically can help protect your career and wellbeing. If in doubt, seek professional support early.
If you’re facing a workplace investigation and are unsure of your rights or next steps, our team at TLB Law & Co is here to help. We provide clear, strategic advice tailored to your situation, whether you’re responding to allegations, preparing for interviews, or considering your legal options.
If you would like a free 15 minute consultation with us call us on 1300 80 67 80 or visit www.tlblaw.com.au to book a confidential consultation and find out how we might be able to assist you.