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One keylimitation on an employee’s rights during an investigation is that an employee isnot entitled to confront his or her accusers. Any mistreatment of a person whohas made genuine accusations could amount to unlawful victimization.
Another key limitation is that an employee is not entitled to control theinvestigation process. An employee (or representative) does not have the rightto determine the conditions under which he or she meets with an employer.
Accordingly, an employee is not entitled to dictate that an employer conductsits investigation in writing with the employee’s legal representative.
Simultaneouscriminal investigation
Sometimes an investigation of allegedmisconduct may coincide with a criminal investigation into the incident by thepolice (for example, a case of workplace sexual assault). This does not preventan employer from conducting an investigation into the allegation. An employeris entitled to investigate alleged misconduct by an employee in the context oftheir ongoing employment, irrespective of whether a complaint has been made tothe police.
If criminal proceedings have been concluded, then an employer can have regardto the result of those criminal proceedings during its own internalinvestigation. However, this does not displace the employer’s obligation toinvestigate the alleged misconduct in the context of the employment. If anemployee is convicted of criminal charges, an employer is entitled to rely uponthe conviction, together with the evidence revealed during the criminalproceedings, as demonstrating that the misconduct had occurred. Conversely, anacquittal will be a factor that may throw doubt on any subsequent decision bythe employer to dismiss the employee for the misconduct.
Timing
Investigations should be conducted as expeditiously as possible,particularly where the alleged conduct issufficiently serious to justify summary dismissal. If the employee isultimately summarily dismissed, the fact that an investigation lasted formonths will lend weight to the argument that he or she should have been givennotice of termination (particularly if he or she was allowed to continueworking during that time).
Even if an allegation is being investigated by a third party such as thepolice, in order for the employer to rely on the misconduct to dismiss theemployee immediately, the employer must provide the employee with anopportunity to respond within a reasonable time. An employer is not required toawait the outcome of criminal proceedings before dismissing the employee.
Ideally, investigations should be concluded within a week or two of theircommencement.
Policies, au’ardc or agreements
An employer’s obligation to take thesteps outlined above must be considered in conjunction with any policy, awardor agreement relating to the conduct of investigations into employeemisconduct. Failure to conduct an investigation in accordance with apredetermined procedure may make itprocedurally flawed and unfair.
Therefore, at the outset an employer should establish whether any obligationsor procedures exist in any relevant policy, award or agreement prior to thecommencement of any investigation. It is difficult for an employer to salvagean investigation into allegations of misconduct when the initial investigationinto the allegations is inherently flawed.
Another key limitation is that an employee is not entitled to control theinvestigation process. An employee (or representative) does not have the rightto determine the conditions under which he or she meets with an employer.
Accordingly, an employee is not entitled to dictate that an employer conductsits investigation in writing with the employee’s legal representative.
Simultaneouscriminal investigation
Sometimes an investigation of allegedmisconduct may coincide with a criminal investigation into the incident by thepolice (for example, a case of workplace sexual assault). This does not preventan employer from conducting an investigation into the allegation. An employeris entitled to investigate alleged misconduct by an employee in the context oftheir ongoing employment, irrespective of whether a complaint has been made tothe police.
If criminal proceedings have been concluded, then an employer can have regardto the result of those criminal proceedings during its own internalinvestigation. However, this does not displace the employer’s obligation toinvestigate the alleged misconduct in the context of the employment. If anemployee is convicted of criminal charges, an employer is entitled to rely uponthe conviction, together with the evidence revealed during the criminalproceedings, as demonstrating that the misconduct had occurred. Conversely, anacquittal will be a factor that may throw doubt on any subsequent decision bythe employer to dismiss the employee for the misconduct.
Timing
Investigations should be conducted as expeditiously as possible,particularly where the alleged conduct issufficiently serious to justify summary dismissal. If the employee isultimately summarily dismissed, the fact that an investigation lasted formonths will lend weight to the argument that he or she should have been givennotice of termination (particularly if he or she was allowed to continueworking during that time).
Even if an allegation is being investigated by a third party such as thepolice, in order for the employer to rely on the misconduct to dismiss theemployee immediately, the employer must provide the employee with anopportunity to respond within a reasonable time. An employer is not required toawait the outcome of criminal proceedings before dismissing the employee.
Ideally, investigations should be concluded within a week or two of theircommencement.
Policies, au’ardc or agreements
An employer’s obligation to take thesteps outlined above must be considered in conjunction with any policy, awardor agreement relating to the conduct of investigations into employeemisconduct. Failure to conduct an investigation in accordance with apredetermined procedure may make itprocedurally flawed and unfair.
Therefore, at the outset an employer should establish whether any obligationsor procedures exist in any relevant policy, award or agreement prior to thecommencement of any investigation. It is difficult for an employer to salvagean investigation into allegations of misconduct when the initial investigationinto the allegations is inherently flawed.
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