Workplace investigations can be uncomfortable for everyone involved.
An employee may be worried about their job, reputation and whether the employer has already reached a conclusion. The employer may be under pressure to respond quickly while making sure the complaint is taken seriously and everyone is treated fairly.
A good workplace investigation helps the employer understand what happened before deciding whether any action is needed. An unfair investigation may overlook important evidence, give the employee little opportunity to respond or simply confirm a decision that has already been made.
In this article, our employment lawyers explain what may make a workplace investigation unfair in Australia, what procedural fairness looks like in practice and what employers and employees can do when concerns arise.
What makes a workplace investigation unfair?
An investigation may be unfair if it is biased, predetermined or conducted without procedural fairness.
This may happen because the investigator was personally involved, has a close relationship with one of the parties or has already formed a view about what happened. It may also happen when the process appears formal but is not genuinely fair. Meetings may be held and statements collected, but the employee may still be given vague allegations, inadequate time to respond or no real opportunity to have their evidence considered.
Common warning signs include:
- unclear or changing allegations;
- an investigator with a conflict of interest;
- inadequate time for the employee to respond;
- relevant witnesses or documents being overlooked;
- evidence being considered selectively;
- poor communication;
- unnecessary delay;
- failure to follow workplace procedures; or
- an outcome that appears to have been decided in advance.
Employers should seek independent legal advice to avoid any perceived bias.
What does procedural fairness mean?
Procedural fairness means giving a person a proper opportunity to understand and respond to a matter that may affect them.
Not every investigation needs to follow exactly the same process and the process should suit the circumstances, but the basic principles of fairness should still apply:
The allegations should be explained clearly
An employee cannot respond properly if they are simply told that concerns have been raised about their “behaviour”, “attitude” or “communication”.
They should generally be told what they are alleged to have done and given enough context to understand the issue. Depending on the circumstances, this may include:
- what allegedly happened;
- when and where it occurred;
- who was involved;
- the workplace policy or expected standard that may have been breached; and
- the possible seriousness of the matter.
The employer may not always be able to disclose every document or detail immediately. Privacy, confidentiality and safety concerns may need to be considered.
However, the allegation should not be so vague that the employee is left guessing about what they need to answer.
This is particularly important where the complaint involves several events over a long period. The employee may need dates and examples to identify relevant documents, witnesses or other evidence.
Employees need a genuine opportunity to respond
Inviting an employee to a meeting is not enough on its own. The employee should have a reasonable opportunity to consider the allegation, explain what happened and identify relevant evidence. This might include emails, messages, documents or the names of people who witnessed the event.
The amount of time needed will depend on the seriousness and complexity of the allegation. A straightforward issue may be addressed quickly, while a serious complaint involving several incidents may require more notice.
The employer must also genuinely consider the employee’s response. An investigation may appear fair because the employee was allowed to speak. However, the process is still questionable if their explanation could never have changed the outcome.
The investigator should consider all relevant evidence
A fair investigator considers evidence that supports the allegation and evidence that may contradict it. This could include emails, messages, meeting notes, policies, rosters, system records and witness accounts.
Not every piece of evidence will be equally reliable. People may remember the same conversation differently. A witness may have seen only part of an incident. A message may appear clear on its own but mean something different when read in context.
The investigator needs to assess that information carefully. An investigation may be unfair if the investigator speaks only with witnesses who support the complaint or dismisses evidence raised by the employee without properly considering it.
The investigator does not need to collect every possible piece of information. They should, however, make reasonable enquiries and consider anything that could materially affect the findings.
The investigator should be impartial
Many workplace investigations are conducted internally by a manager or human resources professional. That is not automatically unfair.
Problems arise when the investigator has been involved in the events, has already expressed an opinion or has a relationship with one of the parties that may affect their independence.
For example, it may be difficult for a manager to investigate a complaint fairly if it concerns the manager’s own conduct or a decision they personally made.
An external investigator may be appropriate where:
- senior employees are involved;
- the allegations are serious or sensitive;
- there is an actual or perceived conflict of interest;
- several employees are involved;
- dismissal is a possible outcome; or
- the organisation does not have the internal experience to manage the matter.
The investigator must still explain the allegations properly, remain open-minded and consider the relevant evidence.
The outcome should not be predetermined
An employer may form an early view because the complaint is serious, the complainant is trusted or there have been previous concerns about the employee.
Those circumstances may be relevant, but they should not replace a proper investigation of the current allegation.
Predetermination can affect which witnesses are believed, which documents are treated as important and how the employee’s explanation is viewed.
Taking a complaint seriously does not mean accepting it without question. It means investigating it properly.
Check out our article on outcomes for businesses after workplace investigations.
Confidentiality, timing and communication
Workplace investigations often involve sensitive information. Employers should generally limit disclosure to people who need the information for the investigation or the decisions that follow.
However, complete confidentiality is not always possible. An employee needs enough information about the complaint to respond properly, which may require parts of another person’s account to be disclosed.
The investigation should also be completed within a reasonable time. A rushed process may result in missed evidence and inadequate time for the employee to respond. Unnecessary delay can create anxiety, damage workplace relationships and affect the reliability of evidence.
Where an investigation takes longer than expected, the employer should provide appropriate updates. These do not need to reveal confidential information, but they can explain that the process is continuing and what will happen next.
Clear communication can prevent an otherwise reasonable investigation from feeling secretive or predetermined.
What might an unfair investigation look like?
Consider an employee accused of making an inappropriate comment during a team meeting.
The employee is called into a meeting without being told the exact words they allegedly used and is expected to respond immediately.
They explain that several other people attended the meeting and that messages sent afterwards may provide useful context.
The investigator speaks with the complainant and one supporting witness but does not contact the other employees or review the messages. The employee is then told that the allegation has been substantiated.
The concern is not simply that the employer reached an unfavourable finding. The allegation may ultimately be true.
The problem is that the employer may not have gathered enough information to reach a reliable conclusion. The employee did not clearly understand the allegation, had little time to prepare and identified evidence that was not considered.
A fairer process would involve explaining the allegation clearly, allowing reasonable time to respond and reviewing the evidence that could affect the findings.
The result may still be the same, but the employer would be in a stronger position to explain how it was reached.
What can happen after an unfair investigation?
If an employer relies on an unfair investigation as the basis for dismissing an employee, the fairness of the process may be relevant to an unfair dismissal claim.
Depending on the circumstances, an employee may seek assistance through the Fair Work Commission, a state industrial relations body or court proceedings. A successful claim may result in compensation or, in some cases, reinstatement.
There may also be broader consequences for the employer, including legal costs, management time, reputational damage and a loss of trust in the workplace.
Not every flaw will result in legal action. However, an employer will generally be in a stronger position if it can show that the allegations were explained, the evidence was properly considered and the employee had a fair opportunity to respond.
How can employers reduce the risk of an unfair investigation?
Before starting an investigation, the employer should clarify what is being alleged and decide whether a formal process is necessary.
A minor disagreement may be addressed through an informal discussion. A serious allegation involving bullying, harassment, dishonesty or safety may require a formal investigation.
Where an investigation is needed, the employer should consider:
- who should conduct it;
- whether there are any conflicts of interest;
- what information needs to be collected;
- which witnesses should be interviewed;
- what details must be given to the employee;
- how confidentiality will be managed; and
- how the process will be documented.
Employers should also keep the investigation findings separate from the disciplinary decision.
The investigator considers whether the allegation is substantiated. The employer then decides what action, if any, is appropriate. That later decision may take into account the seriousness of the conduct, the employee’s explanation, their employment history and how similar matters have been handled.
Keeping the two decisions separate reduces the risk that the investigation will be shaped by a preferred outcome.
Frequently asked questions
How can a workplace lawyer help?
A workplace lawyer can advise on the scope of the investigation, the allegations that should be put to the employee and the steps needed to provide procedural fairness.
A lawyer may also conduct the investigation or advise on the findings and any disciplinary action being considered.
Employees can seek advice about responding to allegations, raising concerns about the process and understanding the legal options available.
What types of misconduct can lead to a workplace investigation?
Workplace investigations may involve allegations of bullying, harassment, discrimination, dishonesty, fraud, safety breaches, inappropriate communications or breaches of workplace policies.
Whether a formal investigation is needed will depend on the seriousness and complexity of the issue.
Can an unfair workplace investigation lead to unfair dismissal?
Yes. If an employee is dismissed following a flawed investigation, the fairness of the process may be relevant to whether the dismissal was harsh, unjust or unreasonable.
The employer’s reason for dismissal and the opportunity given to the employee to respond may both be considered
Does an employee have a right to see the investigation report?
Not necessarily. Whether an employee is entitled to receive the report or particular evidence will depend on the circumstances.
However, an employee should generally be given enough information about the allegation and any significant adverse material to provide a meaningful response before a final disciplinary decision is made.
About the Author
Farrah Motley
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