We often assist employees who have allegations made against them. Many times these allegations are either false, exaggerated or taken out of context. Allegations can range from bullying, harassment, breaching policy, misconduct and many other things.
Here are some strategies that can assist you if you’re put in this situation.
It is normal to feel upset, distressed and even angry when presented with allegations. Staying professional and allowing the process to take its course is often the best approach.
Avoid confronting the complainant as this can exacerbate the situation. Don’t try to clear the air or reason with them. Don’t take any retaliatory action against the complainant or other employees involved in the complaint. Doing so may be a breach of employment laws, specifically the general protections provisions of the Fair Work Act.
Let the Process Take Its Course
When allegations are first made, a company will normally initiate an investigation. This can be formal or informal.
An informal investigation usually involves conversations with the relevant people and possibly some written confirmation. A more formal investigation involves interviewing witnesses and collecting witness statements, which often is done by an external professional such as a lawyer or human resource consultant.
Check the company policies to see if there are relevant procedures in place. Read and understand them. This will set out what to expect.
If you have any questions about the process you should contact human resources or management to clarify. They are obliged to inform you of the steps.
Understand the Allegations
One of the first things you should do is understand the allegations against you. Normally the company should put the allegations in writing and give you an opportunity to respond. If the allegations are not specific enough, ask clarifying questions from management so you can fully comprehend the case against you.
After an investigation is conducted, the company usually decides whether the allegations are “substantiated” or “unsubstantiated”. If they are unsubstantiated then you are cleared and hopefully you continue your employment without any issue.
If the allegations are substantiated, the next step is for the company to send a “show cause” letter. A show cause letter sets out the allegations in detail and gives you an opportunity to respond - before the company makes a decision on whether to terminate employment or not.
Responding to Allegations
Before the company takes steps to dismiss you, they should give you an opportunity to have your say. It is often best to respond to allegations in writing. You should consider getting legal advice. The team at MKI Legal has lots of experience assisting employees in responding to allegations.
Your response is an opportunity to put forward your case and legal arguments. A well-crafted response can
- reduce the prospects of your employment being terminated;
- increase the chances of the company making a finding that you did not engage in wrongdoing or not to the severity alleged.
When responding to allegations it's important you address the allegations directly. Often, we see responses that go off topic and they fail to answer the questions put to the employee. Raising other grievances in your response is usually not appropriate unless they are directly related to the allegations made.
As part of the process, you may be required to attend meetings with management or human resources. You have the right to ask for a support person. A support person is someone who is there to support you during the process.
A support person is not an advocate and doesn't speak on your behalf. Having a support person is also advisable because there’s another person who can act as a witness in case you are dismissed and matters escalate.
A support person can also take notes which can help you understand and review the meeting afterwards, especially if it was difficult to follow due to the stressful environment situation.
In addition to responding to the allegations, MKI Legal can also negotiate confidentiality with the company to reach a mutually agreed resolution. This can involve payment of compensation, an agreement that the employment ends due to resignation and an agreement for the parties not to disparage each other.
If you are able to negotiate an exit, this is usually recorded in a settlement agreement. It's important to get legal advice and have the settlement agreement properly drafted. A settlement agreement usually sets out the obligations of each party such as:
- Obligations on the employer to pay you.
- Duties not to say anything negative about the other.
- Confirmation that the parties cannot commence legal proceedings against the other, and all disputes are resolved.
Sometimes during the process a company may put a deed in front of an employee. If this happens, do not sign the deed without first getting legal advice. You may be tying yourself or giving up critical legal rights.
If You’re Dismissed
If after going through the process, the company decides to dismiss you, MKI Legal can help you take steps to clear your name and get compensation. This usually involves commencing legal proceedings.
You only have 21 days from the date that your dismissal takes effect to start a claim. If you have been dismissed, please contact us for a no-obligation discussion to see how we can assist you.