Employers and employees both have obligations in investigative meetings
It’s not a nice feeling - you thought you were doing a great job and getting on well with everyone in your workplace. Then, out of nowhere, you’ve got an invite from HR or your manager asking for a “chat.”
The feeling of despair, gloom, and doom that follows is natural.
It’s easier said than done, but the first step is not to panic. The feeling of dread is because it’s jarring to be treated this way, especially when you take your work seriously.
An employer shouldn’t make decisions to discipline (or worse, terminate) without first giving an employee the opportunity to respond with information relevant to the allegations. If it makes decisions that negatively impact the employee without their consultation or input, it is not providing the employee with procedural fairness, which it should.
They are still an employee, and the employee owes it to the employee to give them a fair go at explaining themself. When an employer fails to do this, it may be in breach of the law, and the employee may have the right to make a legal claim against it.
Whether it’s the first meeting or not, the employee can request to bring a support person with them. A support person is someone who provides moral and emotional support during the meeting. This can be a friend, family member, neighbour, union representative, co-worker, or even a lawyer. While a support person usually cannot advocate for the employee during the meeting (meaning they cannot respond to allegations or questions on the employee’s behalf) they go a long way, simply by helping the employee stay calm and reduce the likelihood of mishaps.
Their role is to help the employe feel supported. They can call for breaks if they think time is needed to regain composure, and they can offer ideas or advice on responding to questions. They can also take notes and ask questions for clarification, which can help the employee better understand the employer’s process.
It’s important for an employee to be upfront, honest, and clear when addressing allegations or questions, either verbally or in writing. To the extent that they are able to do so safely and effectively, they can and should participate in any opportunity to respond. The employee should not be rushed, and if they need more time or can’t think straight because it’s an ambush meeting, they can ask for an extension on time or for allegations to be detailed in writing so that they have a fair chance to properly consider when their head is clearer.
Honest communication, and later honest participation, helps maintain credibility and prevents any unintentional damage to it.
Employees shouldn’t hesitate to ask for clarification if they don’t understand a particular allegation or question. They likely don’t have all the information that the employer possesses, and it’s possible that they may have even misunderstood a specific obligation, process or procedure, which could explain the allegations.
It’s perfectly acceptable for an employee to inquire about the source of that obligation, process, or procedure. In case it’s overlooked, they can ask where it can be found and whether the employer has previously communicated it clearly. If the employee’s actions were unintentional or inadvertently violated a policy because they were unaware it existed, they have a valid basis to argue that their actions were a mistake.
If an employee has genuinely made a mistake or misunderstood an obligation, process, or procedure, and didn’t intend for their actions to be perceived in a certain way, they should take this opportunity to reflect on any wrongdoing. Create a future where the employer gets all the good, with all the risks removed. Both sides can suggest practical solutions for correcting the employee’s conduct.
The employee should acknowledge their mistake, take accountability, and apologise if appropriate. Proposing training courses or creating a plan to address the situation moving forward are also recommended.
These situations can be stressful and tensions often run high. While it’s natural to expect the worst, employees should have a solid grasp of the legal requirements and their rights and entitlements, which can significantly reduce stress.
Being called in to answer questions is not negative; it doesn’t have to be a confrontational or highly charged experience. It’s a fine balance to try and control, but the employer does have a right (and possibly an obligation) to put allegations and investigate in many circumstances – it’s doing its job by asking.
Employees mustn’t forget, though, depending on their goals, if they need to clear their name and continue working, they need to do it practically and sensitively, without burning the whole house down. This probably means that if things are complex, they should get some advice, because making the wrong strategic choices and taking adversarial tangents can cause more harm than good.
Kevin Yee is a Partner at Danny King Legal in Sydney.
