Workplace Investigations: Should I hire a lawyer?

December 4, 2020

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Being part of a workplace investigation is stressful on all parties involved, irrespective of the seriousness of allegations.

An employer must understand the legal process associated with a workplace investigation, and its relationship with the Fair Work Act 2009 (Cth) and Fair Work Commission (FWC). Despite many complaints not requiring legal intervention, should the alleged conduct turn into a legal matter after initial findings, it is important employers obtain suitable representation and advice.

Whether to approach a Human Resources consultant or a lawyer depends on the seriousness of allegations and potential consequences which may flow from the outcome of an investigation. Generally, where an employee has engaged in conduct that, if substantiated, constitutes serious misconduct, or where complaints of bullying, harassment or other inappropriate behaviour against another employee are made, an investigation is necessary.

HR consultant or lawyer?

If you are unsure whether your business needs to conduct a workplace investigation into a particular allegation, a consultation with a lawyer is a good place to start for initial advice. A lawyer will be able to point out the requirements of company policies, any applicable enterprise agreement, and the common law with respect to conducting workplace investigations. A lawyer will also be aware of the legal risks and implications which flow from a poorly conducted workplace investigation.

A HR consultant will often help in lessening the tension between parties if they are familiar with those involved, but will likely not be able to approach the investigation with the same detail as a legal representative. A lawyer should be comfortable in providing reasons as to why certain actions should be taken so that the best outcome is achieved.

Although a HR consultant will understand the workplace and its relationships, the detail in which a lawyer can assess all relevant facts, potential witnesses, and conflicting evidence will be crucial to achieving the best result for the accused or complainant, but also the workplace.

The publicity of certain investigations may have a negative impact on business operations, and it is a tough balancing act supporting all parties. Allowing either the complainant or respondent to direct the investigative process is also a fundamental mistake often made, and is a key reason external, impartial legal help should be considered.

Lawyers have a keen awareness of rules of natural justice and procedural fairness which must be applied to all parties to a workplace investigation. If an employee is dismissed as a result of a workplace investigation, that employee may bring an application for unfair dismissal against the employer. If the FWC finds that the dismissed employee was not afforded procedural fairness, the FWC may award compensation to the dismissed employee.

Lawyers also have extensive duties relating to confidentiality as part of their professional obligations. This means they are experienced in handling matters confidentially, discretely and with sensitivity.

There a several steps that need to be taken when commencing a workplace investigation against an employee.  First, all relevant details of the allegations in question must be collated alongside all witness accounts. This allows for any conflicting details between parties to be examined and hopefully solved to provide clarity in the investigative process.

Second, all policies relevant to the investigation must be examined and the specific guidelines that may have been breached. Lawyers are experienced at drafting, interpreting and applying workplace policies, contracts of employment, and relevant enterprise agreements.

Third, a full summary of the complaints made and the steps taken to resolve the issue prior to the investigation should be collated. Any workplace complaint should involve proper preparation, investigation, reporting and resolution. Providing unbiased and objective advice on the alleged conduct is also something that a lawyer can provide.

Given many businesses have an internal HR department, there is the potential for opinions and support for certain individuals to influence an outcome. Engaging a lawyer to deal with the investigation externally will ensure that all perceptions of bias are appropriately managed.

Handling serious workplace investigations must be done with care and attention to detail. This is what a lawyer will do best.

PH Solicitor has significant experience and expertise in workplace relations, investigations and employment law. Should you be the subject of, or wish to initiate a workplace investigation against your employee, do not hesitate to contact us. We will provide expert advice, but also reduce the significant stress that may be a consequence of this type of matter.