Workplace Investigations
Advice for Employees
At MV Law, we have extensive knowledge and experience in advising on and conducting workplace investigations, including investigations under the APS Code of Conduct and the ACTPS Code of Conduct for those working in government, as well as allegations of conduct under the state and territory Reportable Conduct Schemes.
We assist employees in a range of capacities, including as support person, adviser and advocate. You decide on the level of assistance you need, within your preferred budget.
We can take the lead on your workplace response or support you in the background. For example, we can help you to respond to allegations of misconduct by reviewing a response written and submitted by you or by drafting a response on your behalf. We are agile and flexible in our approach so you can alter the approach as the matter progresses. At such a stressful time, this flexibility has provided invaluable support to our clients. We can also assist you in understanding your rights and obligations under the laws and policies that apply in your workplace, even where your workplace conduct is not under investigation, giving you peace of mind that you have taken steps to keep your employment secure.
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I'm being investigated. What are my rights and what should I expect?
A workplace investigation is a formal and structured review conducted by organisations to examine allegations of misconduct, breaches of policy, or other workplace concerns.
A worker’s rights during an investigation depend on the industrial instrument, contract, workplace policies, and relevant legislation governing their work, but can include:
- Right to procedural fairness
- Right to a support person
- Right to confidentiality
- Right to representation
- Right to sufficient information to enable a meaningful response
- Right not to be unreasonably suspended
- Right to protection from victimisation and adverse action
While not always codified as a strict legal entitlement, it is accepted practice and highly recommended for employees to be offered the opportunity to have a support person present at interviews or meetings during a workplace investigation.
A worker may be legally required to participate in a workplace investigation if their employer provides a lawful and reasonable direction to do so. If an employee refuses to participate in a workplace investigation without a valid reason, and after being reasonably directed to do so, this can justify termination of employment or disciplinary action for failure to follow a lawful and reasonable direction.
An employer generally has the right to suspend an employee on full pay for a limited period while a workplace investigation into alleged misconduct is conducted, provided that the suspension is based on a lawful and reasonable direction. Whether the employer can also withhold pay for the period of the suspension depends on the terms of the employee’s contract of employment, award or enterprise agreement.
You should be informed of this outcome, and if you were suspended during the investigation, you should be invited to return to work.
If the alleged behaviour warrants termination and the allegations against you are substantiated, your employer may terminate your employment at the conclusion of the investigation.
Yes. An employment lawyer can explain your rights and assist you to prepare your responses. It can be important to get the nuance of any omission you make right, as well as defend yourself in a way that does not indicate that you are ignorant of your responsibilities.
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