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Home > News > Misconduct & Workplace Investigations: Help for Workers

Misconduct & Workplace Investigations: Help for Workers

2020-07-31

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So, you’ve been notified that the boss wants a meeting with you and you’ve found out that it relates to allegations about misconduct. What do you do and how do you protect your employment?

We receive many enquiries from employees in this exact situation and the laws that apply to workers who have been accused of misconduct or who are the subject of an investigation aren’t always clear.

 

What rules apply?

One of the first things to find out is what rules or regulations do apply to you. Some relevant rules might be:

  • Enterprise Agreement. If an enterprise agreement applies to your workplace, then it may have clauses dealing with disciplinary matters, misconduct, bullying or performance management, as well as a disputes clause. Read it carefully and get advice from your union delegate, organiser or a lawyer about how to ensure that the employer follows the procedures set out in the agreement. The agreement may also provide a mechanism for you to challenge or dispute the employer’s position, so it’s important to know what rights you have under that agreement.
  • Employer policies. These are not normally binding on an employer although the chances are high that you will be required by your employment contract to follow policies. Try to ensure that the employer follows the requirements of any applicable policy carefully and find out whether any policies provide you with the rights in respect of process or support in this type of situation.
  • Anti-discrimination law and general protections . If you believe that you have been subjected to an investigation because you have a certain attribute (such as your age or ethnicity) or because you have exercised a protected right (such as asking questions about your pay or being a union delegate) then you may be eligible to bring a claim against the employer for its unfavourable treatment of you.
  • Practitioner conduct rules and regulations . If you work in mental, disability or aged care, a range of different regulations will apply to your work and some forms of misconduct may attract mandatory reporting obligations. These regulations will have a bearing on your rights and may affect the level to which you should participate in any investigation. (see below)

 

What if I’m sacked?

If you lose your job because of misconduct allegations, you may be eligible to bring an unfair dismissal or general protections claim. The truth of the underlying allegations against you will be relevant to any case, but the process used to investigate any allegations may also be relevant. If an employer hasn’t followed its own policies or has targeted you unfairly when other workers were involved in the same conduct, this may support a finding that you were terminated unfairly.

A very short timeframe (21 days from the effective date of termination) applies to these claims, so contact your union urgently for advice if you have been, or think you might be, sacked.

 

My tips for attending a meeting

The first question to consider is whether you have to attend a meeting, and secondly, if you do attend, what happens in the meeting?

First off, if an employer directs you to attend a meeting, then you are generally required to attend the meeting. Such a direction will usually be reasonable and lawful. Whether you are required to answer the employer’s questions might depend on whether the conduct alleged against you has the potential to be reported to a regulator or police. I’ll deal with that below because the risks and ramifications can be much higher for workers faced with that situation.

If you do attend the meeting, while the facts of every case will be different, there are some general rules that can help workers navigate such a scenario:

  • Find out what the meeting is about. If you don’t know what you’re being called in for, ask for the boss to tell you what the meeting is about, preferably in writing, and who will be attending the meeting.
  • Always take a support person. You should take a support person, whether that’s a union rep or delegate or friend, into any meeting that’s about your conduct. That person will be able to listen carefully to what’s said in the meeting, help you later recall what happened in the meeting, stand up for you if you are being pressured in any way and provide you with emotional support. In some cases, this person will also be able to advocate on your behalf (although I note that the role of a support person in a meeting can be a hotly contested issue itself – perhaps a point for another article!) Your support person will be a witness to any unfair practices and will also be able to assist you in viewing the circumstances with some objectivity.
  • Make sure the meeting is at an appropriate time. If possible, try to ensure that the meeting takes place when you – and your support person – can both attend and that suits you both. Try to avoid a meeting at the end of a night shift or when you are sick, for example. If you’re directed to attend a meeting but want to reschedule, it usually pays to explain why in writing and to be clear that you intend to go along to the meeting but simply make a request for it to be held at a more suitable time.
  • Don’t sign anything during a meeting. Ask to take any written document away with you so that you have the opportunity to read it with a cool head and to take advice about it.
  • Ask for confirmation of any issues in writing. If you think that the allegations raised against you might be taken further, ask the employer to confirm their concerns in writing before you respond to them, so that you know precisely what you’re being asked to respond to.
  • Ask for copies of relevant documents. If the employer refers to witness statements, an investigation or consultant’s report, try to ask for copies of any of those documents. As a matter of process, it is better for you to see the details of any investigation or witness evidence against you before you respond to an employer’s allegation of misconduct. Access to these types of documents is often contentious, so put these requests in writing and if your request is refused that might be a relevant factor in considering the fairness of any outcome later imposed on you.
  • Take a break if you need it. If you’re in a meeting and feeling overwhelmed, ask to take five minutes to collect your thoughts and/or talk to your support person privately.
  • Make a note of what happened. Take time after the meeting to write down what you recall about the meeting and who said what. This might be useful to you down the track.

 

AHPRA, DSC and other referrals

If the conduct alleged against you has been referred to a regulator such as AHPRA or the Disability Services Commissioner, or you think it might be, I recommend seeking advice from your union and/or a lawyer urgently - prior to attending any meeting and prior to offering any kind of response to the employer in respect of the alleged conduct.

Certain types of conduct must be reported to AHPRA; namely impairment, intoxication while practicing, a significant departure from accepted professional standards, and sexual misconduct. Penalties can include loss of or restrictions upon registration to practice. Some allegations of this nature may even be reported to police and carry the potential for criminal sanctions. If you have any concerns of that kind do not answer questions from your employer, regulator or police until you have sought legal advice. The answers you give to an employer, even in an apparently private context, may be relevant to investigations by any regulator or police and have the potential to be used against you.

In some situations, it will be appropriate for a worker to decline to participate in a workplace investigation, or at least to delay participation while the regulator or other body is investigating. Talk to the union about what legal assistance may be available to you in this situation and whether insurance will help cover necessary legal costs.

 

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About the Author:    Carita Kazakoff is a Principal Lawyer of the Industrial and Employment Law team at Slater and Gordon Lawyers.  Carita has extensive experience in the Industrial and Employment Law fields, having represented unions involved in industrial and bargaining disputes, as well as individual employment matters for a range of issues.  More recently, Carita returned to Slater and Gordon after a two year secondment at Victorian Trades Hall’s Young Workers Centre as the YWC’s Principal Lawyer.  Carita passionately advocated for vulnerable young Australian workers during her time, and was instrumental in ensuring big bosses were put to task over poor treatment of their workforce – a task she is still just as passionate about today.

 

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