Published: 02 May 2019
Author: Stringer Clark

Workplace Investigations: Misconduct allegations and "performance issues"

What to do when asked to attend a meeting with your employer about misconduct allegations against you or "performance issues"

Many urgent queries we receive from new clients relate to requests they have received from their employer to attend a meeting in relation to allegations that have been made against the prospective client (you) by either the employer or a co-worker, or in relation to alleged performance issues.

The types of issues that may arise from such requests can relate to:

• alleged bullying by you; 
• serious allegations of sexual harassment, theft, dishonesty or other misconduct; 
• alleged failures to meet budgets, sales targets or deadlines; 
• personality conflicts with co-workers or manager; or 
• failing to adhere to company policies or a code of conduct.

This is not an exhaustive list by any means but gives an indication of the enquires we field.

This can be an extremely stressful time for you, particularly when the employer has indicated at the time of seeking a meeting that termination of employment is one possible outcome from the process. Quite often after a workplace investigation has commenced further allegations can surface which can expose you to a greater risk of termination, and in some cases criminal prosecution. A workplace investigation can be flung at you out of the blue, regardless of your length of service with an employer.

Will it be a fair initial hearing with the employer?

You may also have real and valid concerns about the prospects of receiving a fair hearing from the employer – particularly when a co-worker and/or a manager may sometimes have a 
not-so-hidden agenda, including a desire to have you “managed out” of the workplace.

In our experience, allegations of unsatisfactory work performance or misconduct, are often used as a tool to bully or displace workers who for some reason or another are thought by the employer or co-worker to be dispensable.

How can you best protect your rights and livelihood?

So, what should you do if you are given notice by your employer that you need to attend a meeting to discuss misconduct allegations or “performance issues”?

First and foremost, you should seek legal advice. Quickly. If you are a member of a Union you should contact the Union immediately and seek a referral to the Union’s lawyers. Regardless of whether you are a Union member or not you should speak to a lawyer urgently. Why?

A lawyer will be able to advise you whether or not you should attend the meeting at the nominated date and time, and/or whether the employer should be asked to provide further details of the allegations being made against you.

A lawyer will also be able to identify the employer’s investigation procedures and relevant policies, often by reference to your Award or Enterprise Agreement. If procedure or policy is appropriate your lawyer can ask the employer for copies and ensure that the procedures and policies are in fact being adhered to by the employer and that you are being afforded natural justice and procedural fairness.

Often it is appropriate to seek an adjournment of the meeting as you may be too ill to attend due to stress or anxiety (often arising from unreasonable action from management or a co-worker). Extreme care must be taken when deciding whether to lodge a WorkCover claim at this point in time as an employer has a complete defence to a WorkCover claim based on psychological injury if it can prove that the worker’s psychological injury was caused wholly or predominately by any one or more of the following:

A. management action taken on reasonable grounds and in a reasonable manner, 
B. a decision by the worker’s employer, on reasonable grounds, to take, or not to take, any management action; or
C. any expectation by the worker that any management action would, or would not, be taken or any decision made to take, or not to take, any management action.

The above Paragraph C is critical in the context of you being asked to attend a meeting with your employer about misconduct or performance issues. If the employer can show that your psychological condition arose wholly or predominately because you expected that management action (such as a meeting, an investigation, or possible termination) might occur, then any WorkCover claim could fail.

To overcome this defence, you need to demonstrate that your psychological injury was actually caused by some management action that was either not taken on reasonable grounds or not taken in a reasonable matter. The definition of “management action”, in the WorkCover context, is broad and for the purposes of this blog relevantly includes:

• appraisal of the worker’s performance;
• counselling of the worker;
• suspension or stand-down of the worker’s employment;
• disciplinary action taken in respect of the worker’s employment;
• demotion, redeployment or retrenchment of the worker;
• dismissal of the worker;
• provision of leave of absence to the worker;
• investigation by the worker’s employer of any alleged misconduct, either of the worker or of any other person relating to the employer’s workforce in which the worker was involved or to which the worker was a witness; or
• communication in connection with an action mention in any of the above paragraphs.

Accordingly, at the relatively early stage of being notified of a requirement to attend a meeting with your employer regarding alleged misconduct or unsatisfactory work performance (and in preparing for the meeting), you might need to show that your employer has acted unreasonably by failing to comply with its own policies, procedures or the relevant Award/Enterprise Agreement in arranging the meeting.

You might achieve this outcome by proving that the employer:

• failed to allow you representation at the forthcoming meeting, 
• withheld information from you upon which it subsequently relied, 
• skipped over relevant steps or obligations it had under its policies/procedures, or 
• pre-judged the outcome of any investigation by failing to interview witnesses that you nominated early whose evidence might have exonerated you or led to a different outcome being reached.

How may an employer defend their position?

While the above defence of the employer is potentially very broad, it is critical to note that at the heart of the defence lies a requirement in most situations for the employer’s “management action” to be taken on reasonable grounds and in a reasonable manner.

Too often we see employers failing to provide a client facing allegations of misconduct or unsatisfactory work performance with even basic information about what the client has allegedly done wrong.

An allegation might be so broad (such as “failing to comply with our standards”) that a client has no hope of being able to understand what allegation they are facing, and even less hope of being able to address the allegation when it is sprung on them at a meeting by the employer.

Also, we see many cases where an employer has concluded that an employee has engaged in misconduct by giving undue weight to the evidence of other witnesses, ignored evidence that was provided by the employee, or withheld information or documents that would have led to a different outcome for the accused employee.

If you have already attended a meeting with an employer regarding alleged misconduct or unsatisfactory work performance, or if your employer has commenced an investigation following the meeting (or indeed already concluded that you have engaged in misconduct or unsatisfactory work performance), we encourage you to seek urgent legal advice from our WorkCover team.

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