An employee has a right to procedural fairness during an investigation process into allegations raised against him/her. This means, that the employee has a right to defend themselves against allegations made against them.
The employee must be given the substance of the complaint and be provided with all credible, relevant and significant material that needs to be addressed. It is essential the employee be provided with the relevant details of the allegations to allow him/her to adequately respond before an outcome is determined.
In the event that an investigation into allegations leads to a dismissal, an employee’s rights are clear.
According to section 387(c) of the Fair Work Act 2009 (Vic), the criteria for considering whether a dismissal is harsh, unjust or unreasonable includes whether the employee was given an opportunity to respond to any allegations against him/her.
In Langdale v KDR Victoria Pty Ltd [2015] FWC 4613 the Fair Work Commission found that inter alia, Yarra Tram’s failure to provide the driver with a copy of the investigation report prior to his termination meeting meant he was not given a reasonable opportunity to respond to the allegations.
This was found to amount to procedural unfairness and an unfair dismissal application was upheld.
Once the investigation has concluded, an employee has a right to see the investigation results to allow him/her the opportunity for a response.
If an investigation finds that that the allegations are substantiated, the employee must be informed and advised of the action that is to be taken to resolve the matter.
Even if the investigation is inconclusive or determines the allegations are not substantiated, the employee still has a right to be informed, provided with details of the nature of the investigation and the basis for the decision.
If an employee participates in an investigation and it goes against them it can be almost impossible to later win an unfair dismissal claim. It is advised to take sound legal advice and to not assume you will be cleared.