What are employee rights in workplace investigations?

When conducting workplace investigations, it’s important to know the rights of employees, whether they are the person against which a complaint has been made, the alleged victim, a witness, or another employee.

This article covers the key workplace investigations employee rights and general protections that businesses need to be aware of when conducting a workplace investigation.

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Why you need to know employee rights in workplace investigations

Whether there is a workplace investigation that is currently underway or about to take place, or you simply are wondering if you should be across it for the future, the answer is simple. It is very important as an employer to be aware of your employee rights, in the context of a workplace investigation, and in fact, in all matters.

Under Australian law and the guidelines set out by Fair Work Australia, employees are entitled to certain rights within the workplace. If an employee’s rights are breached, they may lodge a formal investigation or complaint against the employer, and may take further action, like taking the employer to court, or reporting the employer to Fair Work Australia.

In addition to the legalities and requirements for fair workplace procedures, employee rights are also important from a workplace culture aspect; your employees need to feel like they can trust you to operate with procedural fairness and respect their rights. There is also the matter of your business’s reputation; if you do not respect your employee rights, your reputation is likely to suffer.

When do workplace investigations occur?

In Australia, a workplace investigation can occur for a number of reasons, such as

These investigations should be conducted in a fair, impartial, and thorough manner.

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Employers duties in workplace investigations

When there is an alleged misconduct matter that is reported, or an employee complaint about something that occurred in the workplace, the employer has a duty to undertake an investigation into the matter.

The employer also has a duty to take the appropriate methods and measures during the investigation, while ensuring that the rights of the person being investigated (and any other persons involved) are not breached. The workplace has a duty to ensure that no one is treated unfairly during a workplace investigation.

Unfair treatment at work in Australia

In Australia, the Fair Work Act 2009 and other relevant legislation such as the Age Discrimination Act 2004, Disability Discrimination Act 1992, Racial Discrimination Act 1975, and Sex Discrimination Act 1984 make it illegal for employers to engage in unfair treatment or discrimination in the workplace. This applies to all aspects of employment, from hiring and remuneration, to promotion, training, and termination. This being the case, it also applies to workplace investigations.

The consequences for engaging in unfair treatment can be severe. If an employee believes they have been unfairly treated, they can make a complaint to the Fair Work Commission or the Australian Human Rights Commission. These bodies can conduct investigations, mediate disputes, and, where necessary, enforce penalties against employers found to have violated fair treatment laws. Not only this, but a business’s reputation can be significantly damaged if unfair treatment of employees occurs.

What are employee rights in workplace investigations?

During a workplace investigation, employees have a number of rights.

It’s important to note that employee rights in workplace investigations may vary slightly depending on the specific laws in the relevant Australian state and territory of the workplace, as well as the specific policies of the employer.

In addition to workplace rights according to the law, the Fair Work Act 2009 provides protection for employees from adverse action, such as demotion, unfair dismissal, or discrimination, if it is taken because the employee has exercised a workplace right (such as making a complaint or inquiry). If an adverse action occurs as a result of exercising a workplace right, the employee can make a discrimination or unfair dismissal application to the Fair Work Commission.

It’s important for anyone involved in a workplace investigation to get legal advice if they are unsure about their rights, and the rights of the others involved (whether this is the employee or an employer).

An employment lawyer or union representative can provide guidance tailored to the individual’s situation.

With the above in mind, employee rights in workplace investigations include, but are not limited to, the following:

Right to fair treatment

All employees have the right to be treated fairly and without bias during an investigation. This means there needs to be a fair investigation, the investigator should be impartial and the process should be conducted in a manner that is unbiased and just.

Right to privacy

The investigation should be conducted confidentially to protect the privacy rights of all involved parties. Details of the investigation should only be disclosed to those who need to know.

Right to be informed

Employees have the right to be informed about the particular allegations made against them, the process of the investigation, and the potential outcomes or consequences. When there is a pending investigation into their workplace conduct, or such an investigation is going to occur in the near future, the employee must be informed. It’s important that prior notice is given before the matter is to be discussed, and that this is sufficient notice for the employee to prepare themselves mentally for the workplace investigation.

Right to a support person or representative

Employees often have the right to have a support person or representative present during interviews or meetings related to the investigation. This support person could be a colleague, union representative, or lawyer.

Right to respond

Employees have the right to respond to allegations made against them. They must be given a fair and reasonable opportunity to do so. They should be given reasonable time to prepare their response and should not be rushed or pressured. They also have a right to bring a support person to be present during their response.

Right to a reasonable investigation

The investigation should be conducted promptly and thoroughly. Delays should be minimised to avoid unnecessary stress and disruption. There is also the right to procedural fairness, which has many sub-components (which we’ll detail shortly). Adequate documentation needs to be provided, the investigator must collect evidence from all key witness employees to appropriately investigate the specific allegations, and this all must be done within sufficient time of the complaint or matter taking place.

Right to appeal the final decision

In some cases, employees might have the right to appeal the outcome of the investigation, particularly if they believe the process was not fair or the final decision was unreasonable, or if they believe any disciplinary action as a result of the investigation is unfair or in breach of their employment rights.

Employee rights to workplace investigations procedural fairness

Procedural fairness, also known as natural justice, is a fundamental part of Australian law, including in workplace investigations. It’s essentially the right to a fair process, and it involves the following key principles:

Right to be heard

This means that employees have the right to tell their side of the story before any decisions are made. In the context of a workplace investigation, employees should be informed of the allegations against them in sufficient detail to allow them to understand what they are accused of and to respond effectively.

Absence of bias in conducting workplace investigations

Decisions must be made impartially and without bias or pre determination. This involves both actual bias and the perception of bias. The decision-maker (or investigator) should not have a personal interest in the outcome of the matter.

Informed decision

Decisions must be based on logical proof or evidence rather than on speculation or suspicion. The decision-maker must make inquiries into matters that are relevant and ignore matters that are not relevant. If further information is required in order to make an appropriately informed decision, the further information required must be gathered.

These principles apply to the workplace investigation process, to ensure fairness to all parties involved. This means that if an employee is accused of wrongdoing, the employer should conduct a thorough investigation, allowing the employee to respond to the allegations, and ensuring the investigation and subsequent decisions are conducted impartially and based on evidence.

In terms of procedure, the principles of natural justice require that:

  • The employee should be notified of the exact nature of the allegations against them.
  • The employee should be given a full opportunity to respond to the allegations, provide their own evidence, and challenge the evidence against them.
  • The employer should conduct a thorough investigation and consider the evidence before making any decision.
  • The decision-maker should be impartial and unbiased.

Failing to observe procedural fairness within a workplace investigation can lead to legal challenges against the outcomes of the investigation. For instance, if an employee is dismissed following a procedurally unfair investigation, they might be able to make a claim for unfair dismissal under the Fair Work Act 2009. If the employer acted unreasonably or against company policy during the workplace investigation, the employee may take action against the employer.

It’s important to note that exact procedures may vary depending on the situation and the specific policies of the employer. Therefore, it’s advisable for employees and employers to seek legal advice when faced with a workplace investigation.

Protect the rights of employees during the investigation process with a professional workplace investigator

Ensuring employee rights during a workplace investigation can be a complex task, one that requires experience, attention to detail, and a deep understanding of the laws and regulations governing the workplace.

To assist in this, BRPM Projects offers expert professional workplace investigation services across all industries, with over 20 years of specialist experience in this field.

BRPM’s fully qualified and licensed investigators have a strong reputation for delivering high-quality workplace investigation services that adhere to the principles of procedural fairness for workplace investigations, ensuring that the rights of employees are protected throughout the investigation process.

Why BRPM for your workplace investigation?

Protecting employee rights is paramount during a workplace investigation, and engaging the services of BRPM Projects can help ensure this, giving you the peace of mind you need to focus on your core business activities. Book a free initial consultation with one of our professional workplace investigators today to learn more. Our experienced team is happy to answer questions you may have and can help you to act quickly to investigate any workplace misconduct or other allegations.

In summary, it's paramount to ensure workplace investigations employee rights are upheld

Unfair treatment in the workplace is a serious matter with substantial consequences. It is essential for all employers to ensure they uphold the principles of fairness and equality, respecting the rights of all employees, not just to avoid legal repercussions, but also to build a thriving, respectful, and inclusive workplace.

By taking the appropriate measures and enlisting the help of experts, as well as gaining legal advice where needed, you can appropriately investigate workplace matters while maintaining your employees’ rights.

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Get complete investigation management from start to finish

Outsource your workplace investigation or education sector investigation to the experts at BRPM Projects and enjoy peace of mind while you get back to focusing on your core business. Book your free consultation to learn more about how we can assist.