Investigation of Workplace Misconduct:

For employers and employers handling a serious complaint of misconduct, particularly when it is an allegation of sexual discrimination or bullying can be a stressful and challenging ordeal. As an employer, it is important to have the practical skills to assess complaints, gather corroborative information and make critical decisions that affect employees. You also need to knowledgeable of the current case law and the latest investigation methods, such interviewing techniques and the accessibility of digital information without breaching privacy or confidentiality obligations. Investigations can be initiated from the complaint of one employee regarding another employee or where management becomes aware of conduct by an employee that, if substantiated, may justify disciplinary action or even dismissal.

Often such investigation matters are the responsibility of Human Resources department and/or the manager.  It is important for employers to conduct an investigation within your legal and policy framework, and is compliant with the concepts of natural justice and procedural fairness. Employees need to comply with the Workplace Surveillance Act, a statute that imposes strict procedures to which an employer must comply in obtaining permission to perform covert surveillance in the workplace- usually requiring notice being provided to employees or where the employer has a covert surveillance authority. The types of surveillance and monitoring devices that might be used include optical video (camera/video), tracking, e.g. Global Positioning System (GPS), listening devices, telephone, computer, and biometrics, particularly in respect of time and attendance (involving the use of technology to recognise people on the basis of innate physical characteristics such as fingerprints, iris pattern, DNA, handwriting or gait. Any evidence needs to be appropriately gathered, closely evaluated and any allegations should be put in a manner that meets legal requirements.

 As an employee you may need advice to understand your rights with regard to what evidence the employer can adduce and what conduct they are permitted in regards to conducting an investigation. You may need to ensure that you are afforded a right of reply, procedural fairness and natural justice in the conduct of any investigation. Procedural fairness is required before taking action against the employee, otherwise a tribunal or court may find that dismissal or disciplinary action of that employee was harsh, unjust or unreasonable in the circumstances of the case. An employee should also be provided with notice that an investigation is being conducted against them. Investigations should take account persons involved, mitigating circumstances, involve confidentiality

In the event that you are involved in an Investigation of Workplace Misconduct legal advice may be necessary from an employment solicitor. Also, an employment lawyer will be able to take to ensure that an investigation is conducted in a manner which is legal, compliant and affords fairness and justice for the employee. Conversely, an employee would also need to be aware of whether their rights have been infringed and whether any action is required to protect these rights. If you require assistance with a workplace investigation matter you may wish to contact our firm by telephone on (02) 9233 4048 or send an email to info@navado.com.au and make an appointment to see one of our solicitors. 

This webpage (and any material or wording appearing on this webpage) is provided for general information purposes only and does not constitute any Legal Advice. It does not take into account your objectives, your instructions or all of the relevant facts and/or circumstances. Navado accepts no responsibility to any person who relies on the information provided on this website. We further refer you to our Disclaimer.