McDonald Murholme provides essential advice to anyone facing a workplace investigation. No employee should participate in a workplace investigation without proper legal advice. That advice should insist that:

  1. The employee is told whether or not the workplace investigation is independent or not. Ideally, workplace investigations should be independent and an employee should insist on this. Often workplace investigations are said by the employer to be independent but are not. Independent is defined as:
      • free from outside control; not subject to another’s authority
      • not influenced by others; impartial
      • not connected with another or with each other; separate
      • capable of thinking or acting for oneself
      • an independent person or body
  2. Workplace Investigations must be transparent. Often they are not. To be transparent, the investigator must disclose the terms of reference for the investigation.
  3. The wording of the allegation/charges be specific. Often the wording is vague and indecipherable.
  4. The allegations must not be duplicated unnecessarily. Often one allegation is expressed as multiple allegations to confuse and distress the employee under investigation.
  5. The employee must be given natural justice. This includes fairness, the right to be heard, and responses to listened to or taken into account. Often the employees’ responses are ignored or disregarded.
  6. The evidence on which the allegation(s) are made should be disclosed in an uncensored form. Often the investigator is given a distorted version of the facts or statements by others supporting the allegation.

workplace investigations employee rights

McDonald Murholme is ready to assist any employee facing the above issues and more with fast and efficient service. Workplace Investigations are often sprung on an employee at short notice causing great distress. The employee is frozen out of the workplace, told not to contact anyone, and left in suspense for a few days. Such employees often resign due to fear of the unknown, thereby ending their employment without proper payment being made to them.

Workplace investigations often pretend to be fair by finding some allegations substantiated and others not. This gives the employee the impression that they were listened to but still allows the employer to sack or discipline the employee. The Fair Work Commission often considers evidence of the workplace investigation and the findings of the investigation, even if not independent. Such findings can have a seriously negative impact on an employees claim before the Fair Work Commission whether for unfair dismissal, or workplace bullying.

Our clients' satisfaction is pivotal to our own success.

  • July 2020

    I wouldn't hesitate to recommend McDonald Murholme. From the initial consultation, right through to the resolution process, the entire team was supportive, knowledgable and approachable and made what can be a difficult situation much easier. Specifically Trent and Alexandra provided a high level of service, and engaged with me in a very personable manner. I am extremely satisfied with the service I received.
  • July 2020

    I couldn't recommend the team from McDonald Murholme more. Mr Sam Nottle was efficient, professional and achieved a wonderful result. If you are questioning whether to go ahead with an employment matter legally, I would urge you to do so. The team at McDonald Murholme made the process easy & reduced all of my anxiety and stress. Thank you again, Mr Nottle & team, I can't express my appreciation enough.
  • June 2020

    I found Arthur Hambas & Katherine Boyles extremely professional & compassionate in my dealings with them. After telling Arthur that I felt the details surrounding my redundancy felt wrong he took on my case & secured me a better payout from my employer. I would not hesitate to recommend Mcdonald Murholme to anyone that has a feeling that something isn't quite right. I greatly appreciate everything you did.
  • May 2020

    Extremely happy with the service received from all the staff members i had to deal with. The lawyer allocated for my case (Michael Kriewaldt) was extremely professional and handled the case very smoothly. Highly recommend their services.
  • May 2020

    I found Arthur Hambas & Katherine Boyles extremely professional & compassionate in my dealings with them. After telling Arthur that I felt the details surrounding my redundancy felt wrong he took on my case & secured me a better payout from my employer. I would not hesitate to recommend Mcdonald Murholme to anyone that has a feeling that something isn't quite right. I greatly appreciate everything you did.
  • April 2020

    The solicitors at the firm were very prompt and actioned my complaint against my employer very quickly. I obtained the result I wanted, in fact, I got a better result than what I had originally asked for. I was very pleased with the results and would highly recommend McDonald Murholme.
  • March 2020

    I would like to say that McDonald Murholme have treated me with nothing but professionalism and also great service. Trent, a principal in the firm is attentive to your needs and will ensure your case is handled with care and mindful consideration to all parameters involved.

Workplace Investigation?

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Frequently asked workplace investigation questions

I have been falsely accused of misconduct, what can I do?

You should ask your employer for the exact nature of the allegation(s) and ask for a reasonable time to respond. In your response, you should raise an employment complaint regarding the false allegations.

You should also take a support person to any investigatory or disciplinary meeting.

I’ve been given short notice of a disciplinary meeting. Can I delay a meeting to organise a suitable support person?

There is no obligation for an employer to offer an employee the opportunity to have a support person at a disciplinary meeting. However, if the matter results in a claim being heard by the Fair Work Commission, it may look unfavourable for the employer to not have been accommodating of the employee’s request for a support person.

In the case of Laker v Bendigo and Adelaide Bank Limited, the employer refused the employee’s need to postpone a meeting to another date to allow for the attendance of their support person. The Fair Work Commission held that this request by the employee was not an unreasonable burden on the employer and therefore their failure to reschedule was unfair. Despite this, there are circumstances where the employer’s refusal may be appropriate, particularly where the notice to reschedule was provided on short notice. In Jelea v Sunstate Airlines (Queensland) Pty Ltd T/A Qantas Link, the Fair Work Commission found that the employer had provided adequate notice for the disciplinary meeting and that given the employee had provided short notice to reschedule, there were no grounds to find that the employer had unreasonably refused to allow a support person to assist the employee.

Simply put, if you have been given short notice, then the employer should be willing to reschedule the meeting to provide you with an opportunity to organise a support person. It is only in the instance where you have already been provided ample notice, that the expectations of the employer to accommodate your circumstances are reduced.

I am being asked to undertake a drug/medical test as part of a workplace investigation. Am I obligated to comply?

An employer must provide and maintain a safe work environment. Part of this duty may see employers reducing any health and safety risks which may be caused by the influence of drugs and alcohol in the workplace.

If the employer has reasonable cause to believe that an employee is at risk of impairment due to the consumption of drugs or alcohol, an employee will be obliged to comply with the test. The employer will need to provide the indicators which led them to have a reasonable cause to believe that there was a risk.

For example, if the incident in question relates to a potential OH&S breach or if the employee in question has bloodshot eyes or has an odour of alcohol.

I am being accused of misconduct that occurred outside of workplace hours. Is my employer permitted to investigate this?

The definition of the ‘workplace’ may extend further than the office premises to include out of office conduct. Any individual who is involved in work-related activities in and in connection to, that workplace is subject to the workplace policies. Depending on the circumstances and connection to work, the out-of-office actions may still constitute a breach of the workplace policy.

For example, if misconduct occurred out of office hours at a work-related function with employees from the workplace, the definition of the ‘workplace’ may extend here as the employer is reasonably connected to aspects of this event.

Speak to an employment lawyer who has acted for thousands of employees like you.

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