If your employer has suspended you, it is important to know your rights and what you can do. More often than not, if an employer has suspended an employee, a workplace investigation will take place.
What is workplace investigation?
A workplace investigation is a process in which employers investigate complaints, potential
serious conflict or allegations of misconduct in the workplace. Engaging in proper workplace investigations shows your employees that you respect them and their rights, leading to better organisational culture in which employees are committed and motivated to work for the good of the organisation.
If you have been suspended, you have the right to a fair investigation that is conducted properly and professionally. It is important to make an objective assessment of the matters or facts presented. In some instances, the employer may want to engage an external independent investigator for more serious allegations.
Purpose of a workplace investigation
The purpose of a workplace investigation is to get to the bottom of what happened and to determine whether alleged events occurred. In order to do this, an employer will be required to gather evidence, such as statements or records, in relation to the allegation or issue raised. This evidence is then used to determine whether there is a sufficient amount of evidence to prove allegations.
Employee’s rights in a workplace investigation
1. Awareness of allegations
After an investigation is conducted of a suspended employee, the employee then has a right to have the allegations put forward to them. Generally, the employer must put the allegations to the employee in writing or with enough notice for them to consider the allegations prior to a meeting, in which these allegations will be discussed.
2. Opportunity to respond to allegations
The employer must articulate what the allegations are exactly, put them to the employee and give the employee an opportunity to respond to the allegations. This response is primarily given in a formal sit-down meeting, where the employee can bring a support person along. However, this support person does not need to be a legal representative and in most cases, your employer may not consent to you having a legal representative in these disciplinary meetings.
3. Defence against allegations
In this meeting, the employee has the right to make their case by providing a defence or explanation in response to the allegations put forward. Not only does the employee have a right to defend the allegations, the employees’ response or defence must also be taken into account and seriously considered by the employer.
The employer cannot put the allegations to the employee and ask them to respond, with the idea that they are already guilty and so no matter what they say, it will not change the outcome. This is particularly important if the employer is considering terminating the employee.
The employer cannot premeditate the termination without proper consideration of the employee’s response or defence. This may be grounds for an unfair dismissal; in which it will appear that the employee has not been afforded procedural fairness.
After an opportunity to respond has been provided, the employee has the right to have these responses considered by the employer and for them to take some time and reassess whether the allegations can be substantiated in light of the new information. Once an employer has taken into account all of the evidence before them, they are required to make a decision as to whether any of the allegations are substantiated.
4. Show cause
If the allegations are substantiated and the employer is considering termination of employment, the employee has the right to plead their case and show cause as to why they should not be terminated. This should be conducted in an additional meeting.
In this meeting, the employer needs to communicate to the employee that their job is at risk and that termination is being seriously considered. Once this is communicated to the employee, they then have the right to show cause and demonstrate why they should not be terminated.
This can include highlighting their loyal and dedicated service, every good thing they have done for the company thus far, the effect the termination will have on their reputation and economic standing and how they intend to improve if they are given a second chance.
Employer’s rights in a workplace investigation
After the show cause meeting is conducted, the employer must then decide whether they should continue with terminating the employee or whether the employee has shown cause as to why the employment should not be terminated.
The punishment for any misconduct after an investigation is conducted, needs to be proportionate to the alleged misconduct or poor performance. Even if there is substantial evidence to substantiate an allegation, dismissal may be a harsh response in the context of the employee’s service or previous unblemished employment record.
Thus, the employer must carefully weigh up the matters before them and what punishment is appropriate, if any.
Employee’s rights subsequent to workplace investigation
If an employee is not satisfied with the outcome, the employee can dispute the findings through a claim of unfair dismissal in the Fair Work Commission. Employees often engage a workplace specialist to act on their behalf, especially in cases of workplace investigations.
How to make an unfair dismissal application
The outcome of a workplace investigation can end in dismissal of employment. As an employee, if you still think that you have been unfairly dismissed from your workplace after concluding the workplace investigation, you can file Unfair Dismissal Application by filling in Form F2 and emailing it to the Fair Work Commission at [email protected], keeping in mind that the processing may be slower than expected owing to COVID-19.
Alternatively, you can fax or post Form F2 to the closest Commission office to you.
Remember, the crucial things to remember if you’re part of a workplace investigation are keeping calm and knowing your rights. You’ll be confident enough to handle everything well only If you completely understand your rights as an employee and make the most use of them. Moreover, it’s important to know that a workplace investigation is not the dernier resort and you can definitely take your case up with the FWC.