If you are the subject of a workplace investigation, you should understand your rights and responsibilities in the process. This article is the second in a series of 2 articles about some things you need to know about workplace investigations.
Can I be stood down from work while a workplace investigation is happening?
Yes, an employer can stand an employee during an investigation, to allow the employer sufficient opportunity to conduct the investigation. Unless you are a casual employee you should be stood down on full pay.
However an employer should conduct a workplace investigation reasonably. A workplace investigation that is initiated capriciously and standing down without a sensible reason, might be evidence of workplace bullying by unreasonable management processes, or even may be evidence of unfair process in a claim for unfair dismissal if you are dismissed and are eligible to claim for unfair dismissal.
How should the investigation be conducted so it is fair?
Some elements of a fair investigation process include:
- You should be given clear information about the allegations made against you.
- You should be given an opportunity to respond.
- Any internal policy about investigation processes should be followed.
- A request by you for a support person should not be unreasonably refused.
- Where possible the investigator should be independent – that is, not biased and not involved in the situation.
How long should the investigation take?
The length of the investigation will depend on factors such as:
- Number and complexity of the issues.
- Availability of significant witnesses.
- Time of the year – eg whether a Christmas closure might interrupt the process.
Can my employer investigate even if the police are also involved?
Yes, your employer can still undertake its own investigation. This can be a complex area and you should consider taking legal advice.
Can I be directed to not talk with other employees about the investigation?
Yes, the employer can direct you to not talk with other employees about the investigation, so as to preserve the integrity of the investigation process. If you think other workers will be able to favourably contribute to the process you can notify the employer in writing of the names of witnesses who you believe should be included in the investigation. Although you cannot force the employer to approach them, its failure to do so may be evidence of unfair process in a claim for unfair dismissal if you are dismissed and are eligible to claim for unfair dismissal.
What can I do if I am unfairly terminated after an investigation?
You should take advice about your eligibility and prospects to bring a claim, for example:
- unfair dismissal claim;
- general protections claim;
- unlawful discrimination claim;
- breach of contract claim.
Time limits for commencing a claim may apply and so you should not delay in taking advice.
Implications
Workplace investigations can involve complex factual and legal issues. An employee who is subject to an investigation should take early advice about how to effectively respond to the process.
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