Allegations Against Me

We have lots of experience helping employees respond to false, exaggerated or out-of-context allegations. We can help you respond in a way that gives you the best chance of clearing your name, and where it makes sense, negotiate a mutually acceptable exit.

We often help employees who have had allegations made against them. Many times the allegations are false, exaggerated or taken out of context. They can range from bullying, harassment and breaching policy to other misconduct. Here is how the process usually works, and strategies that can help.

Be Professional

It is normal to feel upset, distressed and even angry when you are presented with allegations. Staying professional and letting the process run is usually the best approach.

Do not confront the complainant or try to “clear the air” with them or with witnesses. Do not take any action against anyone involved in the complaint. That can be treated as interfering with the investigation or as victimisation, and it can become a fresh allegation against you. If you are told not to discuss the matter, follow that direction and ask your employer if you are unsure what is allowed.

Let the Process Take Its Course

When allegations are made, the employer will normally investigate. It can be informal, such as conversations with the people involved, or formal, with interviews, witness statements and a written report, sometimes by an external lawyer or HR investigator.

Check your employer’s policies and procedures, because they tell you what to expect. If you are unsure about any step, ask HR or management in writing to explain the process and the likely timeframe.

You may be suspended while the investigation runs. A suspension is not a finding against you. See suspension and stand down.

Understand the Allegations

One of the first things to do is make sure you understand exactly what is alleged. A fair process means the allegations are put to you with enough detail to answer them, such as what you are said to have done, when and to whom, and that you know the substance of the evidence relied on. If the allegations are vague, ask in writing for particulars.

At the end of an investigation, the employer usually decides whether each allegation is “substantiated” or “unsubstantiated”. If an allegation is not substantiated, you should be told so and the matter should end there. If it is substantiated and your employer is considering disciplinary action, it will often send a show cause letter, setting out its findings and proposed outcome and inviting your response before it decides. See our guide to show cause letters.

Responding to Allegations

Before your employer takes steps to dismiss you, it should give you a real opportunity to have your say while the decision is still open. If you are covered by the unfair dismissal laws, the Fair Work Commission takes into account whether that happened (s 387 of the Fair Work Act 2009 (Cth)). It is often best to respond in writing, and to get legal advice first. The team at MKI Legal has lots of experience helping employees respond to allegations.

Your response is your chance to put your case. A well-prepared response can:

reduce the chance of your employment being terminated; and

increase the chance of a finding that you did not do what was alleged, or not to the degree alleged.

Address each allegation directly. We often see responses that go off topic and fail to answer the questions actually put. Raising other grievances in your response is usually not helpful unless they are directly related. But if you think the allegations were raised because you made a complaint, took leave or for another prohibited reason, tell us, because that can give you a general protections claim.

If the conduct alleged could also be a criminal matter, get legal advice before you give any written or recorded account.

Support Person

You may be asked to attend interviews or meetings with management, HR or an investigator. You can ask to bring a support person. Your employer does not have to offer one, but an unreasonable refusal of a support person at discussions relating to dismissal counts against the employer in an unfair dismissal claim (s 387(d)). A support person is there to support you, not to speak for you, and can also be a witness to what was said.

A support person can take notes, which help you review the meeting afterwards, especially if it was hard to follow in a stressful moment. Do not secretly record meetings without legal advice; in WA, recording a private conversation without consent can be an offence.

Negotiated Exit

As well as helping you respond to the allegations, MKI Legal can, where it makes sense, confidentially negotiate a mutually agreed resolution with your employer. This can include a payment, an agreement that the employment ends by resignation, and an agreement that neither side will disparage the other.

A negotiated exit is recorded in a settlement agreement. It is important to get advice and have the agreement properly drafted. It usually sets out obligations such as:

The employer’s obligation to pay you.

Duties not to say anything negative about each other.

Confidentiality.

Confirmation that neither side will start legal proceedings against the other, and that all disputes are resolved.

If You’re Dismissed

If, after the process, your employer decides to dismiss you, MKI Legal can help you take steps to clear your name and seek compensation. You only have 21 days from the day your dismissal takes effect to lodge a claim with the Fair Work Commission (28 days for an unfair dismissal claim in the WA state system). If you have been dismissed, contact us for a free, no-obligation discussion about how we can help.

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