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A workplace investigation takes place when an employer needs to determine the truth of a matter in the workplace. This process takes place internally to the business and is often exercised when employers are intending on disciplining or dismissing an employee or investigating a complaint by an employee.

General Protections Under the Fair Work Act

The Fair Work Act 2009 (Cth) states that dismissal without a valid reason will often lead to a reasonable claim of unfair dismissal or adverse action, entitling an employee to seek reinstatement and/or compensation. A properly conducted workplace investigation will assist in a rebuttal to any assertion that adverse action has been taken against an employee for an alleged unlawful reason.

A key element when formulating workplace investigations is to provide the employee with natural justice. Natural justice is the right of the employee to understand what is alleged against them to give the employee a fair and reasonable opportunity to respond to the allegations before discipline or dismissal occurs.

Enterprise Agreements and Awards

For employees covered by enterprise agreements and awards, the disciplinary procedure is deeply embedded in the text of the agreement. Workplace investigations are more likely to be scrutinised and can be referred on to the Fair Work Commission under a dispute resolution procedure.

If you are considering commencing disciplinary procedures or dismissing an employee, contract Morgan + English to determine the relevance of workplace investigations to your situation.

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