Are participants in a workplace investigation, as complainant or alleged perpetrator of misconduct, ‘untouchable’ by their employer – can their performance be managed, can they be disciplined, can they be retrenched without risk of court proceedings against the employer?
There is a view in legal and HR circles that the threat of claim by employees in the Fair Work Commission’s ‘adverse action’ jurisdiction means participation in a workplace investigation makes participants immune from any ‘adverse action’ by their employer. The action is not even justified by circumstances unrelated to the facts the subject of the investigation if it is merely contemporaneous with the investigation. This is a myth!
The Fair Work Commission’s ‘adverse action’ jurisdiction enables an employee to bring a claim for compensation against their employer for ‘adverse action’ taken by the employer against the employee because the employee exercised a ‘workplace right’. Being the subject of a workplace investigation may be the ‘adverse action’ and raising a complaint or inquiry (which may be investigated) may constitute the ‘workplace right’ so there’s no doubt that a workplace investigation raises the spectre of an adverse action claim for employers. The area is made more complex for employers because once a claim is made the burden is then shifted to the employer to show that the complaint or investigation was not the reason for the ‘adverse action’.
In my experience acting for employers, it is evident that claims of adverse action are made or threatened on the basis merely that a legitimate business action was taken, like redundancy, contemporaneously with the redundant employee’s participation in a workplace investigation or their mere complaint in respect of matters unrelated. But in decided applications in this area the Federal Court has so far only determined contrary to the myth.
In one case a senior executive argued that her employment was terminated not due to the redundancy of her role but because she complained about the adequacy of her employer’s investigation into her allegations of sexual harassment. The Court rejected the executive’s claim because it considered her complaint about the workplace investigation was not genuine.
In another case an employee argued that she was subject to adverse action being an investigation (in which she refused to participate) because she had worn a union t-shirt to work. The Court rejected the employee’s claim and found the investigation had been commenced to determine whether certain employees had complied with their employer’s workplace policies and not because of the complainant’s industrial activity.
While claimants such as those described above may ultimately not be ‘untouchable’ there are some things employers can do to minimise their risk of exposure to adverse action claims in the context of workplace investigations. One general rule I suggest is that employers consider issues and run processes in ‘parallel’. If a complaint is made and requires investigation but an unrelated issue arises at the same time, such as a restructure or performance or conduct concerns about the complainant (unrelated to the subject of the investigation), the investigation does not prevent the restructure or the performance/conduct management. The two (or more) processes can be run at the same time. However, any decisions resulting from the workplace investigation must be distinct from any decision about the restructure or poor performance/misconduct.
Employers should also ensure that they conduct workplace investigations in an appropriate way – take all complaints seriously, engage an experienced and impartial investigator to undertake a timely and confidential process that permits the complainant, the respondent and all relevant witnesses to be heard, and then communicate the outcome of the investigation to relevant participants.
A workplace complaint or investigation does not make the complainant or other participating employee ‘untouchable’ by their employer.
To avoid successful ‘adverse action’ claims by these employees, employer’s must ensure that are very clear about the reasons and process for the unrelated employee ‘touch’ (redundancy or performance/conduct management in my examples). A good start in this regard is a comprehensive workplace behavior policy known to all employees and aligned with business strategy and values together with guidelines for use by in-house HR professionals dealing with workplace investigations as well as redundancy and performance and conduct management.