What to do if you’re under investigation at work

The challenges of navigating a workplace investigation

There is no single universal “investigation code” or bill of employee rights. Employers may approach the process as though they have broad discretion, and employees can struggle to understand what rights they actually have.

If you are covered by an enterprise agreement, you may be protected by clauses that govern how disputes in the workplace are managed and resolved.

Workplace investigations may also be governed by workplace policies and procedures. In some cases, these policies may form part of your contract of employment.

What rights do you have in a workplace investigation?

If you’re under investigation, it’s important to familiarise yourself with any workplace policies that apply to workplace investigations. You should review your employment contract and any enterprise agreement that applies to your role.

These sources can overlap and may not always be easy to interpret. An experienced employment lawyer can help you identify which legal obligations apply to your situation.

Before you do anything else, identify your priorities

If you’re under investigation, you may feel overwhelmed and under pressure to respond quickly. Before taking any major step, it’s important to consider what outcome you’re trying to achieve.

You may wish to remain in your role and protect your position. You may wish to contest the allegations. Alternatively, you may be considering leaving, but only on terms that preserve your entitlements.

The appropriate approach will depend on your priorities, the facts, and the applicable legal framework.

What should you do now?

If you are under workplace investigation, you should consider the following steps:

• Request the allegations in writing.
  
• Request copies of the relevant policies, contract terms, enterprise agreement provisions, and any other relevant documents that govern the investigation.
  
• Request a detailed outline of the investigative procedure, including who’s making the decisions, what evidence will be considered, and whether there’s a timeline for responding. You may also wish to request additional time if required.
  
• Ensure you are given an opportunity to respond, preferably in writing.

As the process progresses, keep a clear record of all dates, conversations, correspondence, and any deadlines imposed. An accurate record can carry significant weight if the matter escalates.

If the allegations are serious or if the process appears unfair, you should seek legal advice as early as possible, as time limits may apply.

Could the investigation be retaliation?

If the investigation begins shortly after you raise concerns about pay, discrimination, safety, bullying or other workplace issues, after you use a dispute process under an agreement, or seek union representation, a further issue may arise as to whether the investigation is genuine or retaliatory.

Under the Fair Work Act, an employer can’t retaliate against employees who make a legitimate complaint or inquiry about their employment, seek compliance with a workplace law or instrument (like an enterprise agreement), or engage in a few other defined forms of conduct.

That does not mean every investigation after a complaint is unlawful. These matters are often complex and fact-specific. If you have concerns about motive, it’s important to raise this with your lawyer.

What if you’re dismissed?

There are options available, but it’s important to act fast. In many cases, unfair dismissal and related claims must be lodged within 21 days of termination.

If you have been dismissed or believe you may be at risk of dismissal, you should seek legal advice promptly. You may be able to challenge the process, seek reinstatement, or claim compensation if your rights have been breached.

How we can help

A workplace lawyer can identify rights and entitlements that may not be immediately apparent to you or your employer.

They can also assist in identifying relevant information and assessing how it may affect your position.

While this may be your first workplace investigation, experienced employment lawyers have handled many similar matters. This experience can assist in developing a strategy aligned with your objectives.

In some cases, having legal representation may encourage an employer to follow a fairer process and avoid procedural errors.

If you’re in a conflict at work or if you’ve lost your job, you can get in touch with us for advice and support. Our team of Australia’s leading employment lawyers can discuss your rights and options and help you plan your next steps.