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Friday Workplace Briefing

Can an Employee Refuse to Co-operate with a Workplace Investigation?

Mathew and Nina discuss whether or not an employee can refuse to co-operate with a workplace investigation.

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About the Hosts

Senior Associate - Workplace Relations

Episode Transcript

Nina Hoang: So this is a question we get asked all the time.

Mathew Reiman: All the time.

Nina Hoang: And it’s an important one to bring up because there was a recent case, the Serco case, which, look, the facts aren’t that important, it was a dog handler who was being investigated because they found his dog was injured and they wanted to figure out why. He refused flat out to participate in the investigation, said that it was a fishing expedition, a dog hunt you might say. And basically-

Mathew Reiman: You’ve been working on that one. Yeah, well done.

Nina Hoang: Basically was like, “No, I refuse.” They subsequently terminated his employment and it was found that by failing to comply with the lawful and reasonable direction, that was a sound and defensible reason for termination. So that just brings us back to this discussion where if you’ve got an employee who’s been accused of misconduct, what do you do if employee says, “No, I’m not going to entertain this process.”

Mathew Reiman: Yeah, and look, I think, you know, investigations are, often, they’re quite emotive, they’re quite highly charged. And I think all of us fairly would say, look, no one likes to be accused of anything and no one likes to be put under the microscope. So it’s very easy when you are an investigator, you are a HR person, and you’re sitting down to start this process, you might accidentally put your own lens to it and go okay, “Well, I need to get this employee to come and speak to me about these allegations or about this as a witness”, whatever it might be. And I wouldn’t necessarily want to be that person too. So you tend to be a little bit more receptive when an employee does resist that overture to come and be part of this. The important thing, I think, that is forgotten often in this is if you strip away the sort of interpersonal conflict and the emotiveness of it, it does come back down to the lawful and reasonable direction inherent in asking an employee to participate in a workplace investigation.

Nina Hoang: Yeah. There’s no unfettered right for them to say, “No, I automatically don’t have to participate.”

Mathew Reiman: That’s right.

Nina Hoang: Yeah. And look, yes, there is that implied one, but we always recommend that you, in any correspondence, you make it clear that it’s a lawful and reasonable direction, that they have to participate.

Mathew Reiman: Yeah.

Nina Hoang: Emphasis on the reasonable.

Mathew Reiman: Yeah, ’cause the lawful’s is very technical but it’s basically always there in respect of an employee. It’s either implied at common law, it’s the duty of control, it’s all those aspects that are inherent in employment. Where people, more often than not, trick themselves up here is the specific context of an employee and that question of reasonableness. So, yes, it’s always going to be lawful to ask, but is it reasonable in the context of that specific employee? And look, nine times out of 10, thankfully, unless the employee has raised something that’s valid, it is largely going to be reasonable to direct an employee to participate in an investigation in that manner.

Nina Hoang: Yeah. So when we’re talking about when it might not be reasonable, it’s more situations where the employee has asked for a delay because say they’re not feeling very well, they’re feeling psychologically stressed by it and maybe need a day off to consider everything and come back fresh faced. That’s fine. It wouldn’t be reasonable in those circumstances to say, “No, you have to come in now and disclose.”

Mathew Reiman: Yeah. And a common error too, because look, we talk a lot about how processing investigations is really important. You need to be regimented about documenting things, conducting meetings in particular ways, support people, all those different aspects, but it always, because of this overarching umbrella of the lawfulness and the reasonableness of it, you do need to be prepared to be adaptive to the particular context. Again, something we quite often see, you know we largely, a lot of questions all the time. I’ve got an employee who says they can’t, I wanted to have the investigation meeting today and it’s Thursday and they can’t attend until Monday. Okay, well that’s a little bit frustrating, sure, but what really turns all that much on-

Nina Hoang: No.

Mathew Reiman: Three working days difference.

Nina Hoang: Exactly. Yeah, I think that’s the key thing that it’s got to be a reasonable request from both sides.

Mathew Reiman: Yes.

Nina Hoang: So if they say, look, “I’m not going to respond for two months.” Obviously that’s not going to be a reasonable, and the other thing to remember is a common request is, “Look, my union representative’s not available for like, another week or so, so I want to delay it back then.” Look, in those circumstances, it’s probably not as reasonable depending on the length of delay because the purpose of the investigation is to obtain their true versions of facts.

Mathew Reiman: Yes.

Nina Hoang: They can have whatever support person they would want during the process, but it’s not the time for someone else to advocate on their behalf because it’s not a disciplinary meeting. It’s simply obtaining, you know, the true version of events.

Mathew Reiman: Oh, absolutely. And look, the obligation when it comes around its support people in this context anyway is that you’ve offered them the opportunity-

Nina Hoang: Exactly.

Mathew Reiman: To add one not offered them the opportunity to have a specific person at a specific time and so on. So I think that’s a great example of where that reasonableness needs to be taken into account. The other of course, is where, you know, you do get the medical certificate, you know.

Nina Hoang: Yes.

Mathew Reiman: You’ve got the employee, they say that they’re stressed out I mean, it can be dealt with in a much more straightforward way. If you’ve got the employee presenting to you saying, “I’m stressed,” the physical manifestations of it are there. Well that’s a really easy trigger to take a step back. When you get the medical certificate, it doesn’t mean you need to panic right away. What you might then need to do is just adapt your process a little bit.

Nina Hoang: Yes.

Mathew Reiman: You know, is there an opportunity to extend an invitation to respond in writing and so on and so forth. So yeah, really always coming back to that point of the reasonableness to say, “No unfettered right for an employee just to refuse to participate.” But, as many things are in employment law, it’s contextual.

Nina Hoang: Yeah.

Mathew Reiman: You know, don’t try to treat everyone, paint them all with the same brush. You’ve got to look at this on an employee by employee basis.

Nina Hoang: Yeah. And just before we move on to the case study I also want to just emphasise that these same rules that apply to the respondent to any allegations also apply to any other potential witnesses.

Mathew Reiman: Yeah.

Nina Hoang: You might have witnesses who say, “I don’t want to get involved in the investigation, you know, it’s too messy I don’t want to get involved.” They have the same obligations to comply with lawful and reasonable directions. And there’s also other considerations. Like, say it was a safety investigation. Their failure to, you know, cooperate there would be a breach of their duties towards the other employees.

Mathew Reiman: Yeah, absolutely.

Nina Hoang: So same duties apply to all witnesses.

Mathew Reiman: Yeah, we’re not just talking respondents here.

Nina Hoang: Yeah. All right, so onto the case study and it is a long one.

Mathew Reiman: Yeah, Andrew put some extra, extra detail into this one.

Nina Hoang: He knew you were coming back.

Mathew Reiman: I know. Yeah, that’s right. All right.

Mandy worked with aged, disabled people in their homes. She was a carer. Her boss was Joe. Joe, as part of his OHS system, was undertaking risk assessments for new clients, and updating assessments every six months for existing clients. He approached Mandy about her two existing clients. Mandy explained that these were very private people and she would not be happy for Joe to do the assessments.

Joe explained that it was his responsibility. It was a fresh set of eyes and also provided a window in to how the clients saw the support they were given. It was not just a safety assessment, it was a client survey. Mandy became very offended and said, “So you are going to spy on me and not respect these people’s privacy? My relationship with them is very special and I don’t want you prying and damaging that.”

Nina Hoang: That doesn’t sound creepy at all.

Mathew Reiman: No, isn’t it, yeah.

The next day she visited the Lemke’s house. They were an aged couple and the husband had profound physical disabilities from a stroke and his carer wife, though strong and fit, was starting to exhibit memory issues. Mandy took a call from Joe whilst she was at the Lemke’s home. After the call she said to Bob Lemke, “My boss wants to come out and grill you about me and prove that you can’t be looked after at home.”

Bob Lemke rang the organisation hotline the moment Mandy left and asked to be put through to the big boss. He was put through to Joe’s boss. The next day Mandy received a text to ring HR. She rang straight away. Dion, the HR manager, said he needed to speak to her about a conversation she had with her clients, the Lemke’s, yesterday. Mandy hung up.

She then sent a text instead. “How dare you dig into my client’s privacy!” Dion texted back and said they had made a complaint about her and so had her boss, Joe. Dion said he would see her at work at 10:00 AM tomorrow, she may have a support person with her, and Dion will provide her with the letter of allegations. Mandy sent in a doctor’s certificate the following day. It said she would be unfit for work for two weeks and likely longer as she’s suffering from PTSD, depression and anxiety.

Oh, and anxiety, really.

A week later her psychologist sent a note saying she would be unfit until further notice but no less than three months. After two weeks, Dion sent the letter of allegations, included in it was contact details for EAP and other support, and said he required a response in writing within seven days or alternatively, he would be happy to meet with her and a support person before that time.

Mandy wrote back saying the letter was bullying, she was unwell and it further harmed her health. Dion, wrote a further letter, in a sympathetic tone, explaining in the absence of medical evidence she was not fit to answer the allegations, sorry, if she was not fit, she was required to answer them. It was a lawful and reasonable direction.

He said he would welcome any fresh medical evidence but in the absence of that evidence, he would conclude the investigation based on the witnesses he spoke to and her refusal to answer questions, especially as it involved him having to speak directly to a vulnerable and distressed client that breached her obligations to the organisation and may in itself be serious misconduct.

Nina Hoang: It’s never ending.

Mathew Reiman: No.

Mandy sent back a text saying, “Stop threatening me, I’m sick.” After the seven days passed, Dion concluded the investigation and found the allegations proved.

All right. Yes.

Nina Hoang: Okay.

Mathew Reiman: And he did, I think he terminated the employment. I can’t remember.

Nina Hoang: Yeah.

Mathew Reiman: I think that might have fallen off there, but yes.

Nina Hoang: Yeah. So definitely proved and terminated.

Mathew Reiman: Yes.

Nina Hoang: So, was Dion’s approach to question Mandy, in light of her alleged medical condition a lawful and proper process? Yeah I’d say so.

Mathew Reiman: Yeah. Look, again, I mean this goes to what we were speaking about earlier. You know, where you do have to deal with the particular context of the particular employees, but a complaint’s been raised by the two clients and from her direct report so there’s a proper basis to commence an investigation. He’s then gone about it in a very even handed way.

Nina Hoang: Yeah.

Mathew Reiman: He’s tried to accommodate her and, look, given her medical condition importantly there’s nothing in there-

Nina Hoang: No medical evidence.

Mathew Reiman: Yeah, you know, and he even asked, you gave her the opportunity for it, but there was nothing in there. And this is something we deal with all the time.

Nina Hoang: Yeah.

Mathew Reiman: Nothing in there to indicate that she was actually incapable of responding to questions.

Nina Hoang: And he gave her several different ways to respond.

Mathew Reiman: Yes.

Nina Hoang: Like in writing, you want to meet with me? He went above and beyond, so definitely lawful and proper process.

Mathew Reiman: Yep.

Nina Hoang: Did Mandy’s resistance to assist Joe with the client assessment process amount to serious misconduct? And if so why? Yes.

Mathew Reiman: Yeah, absolutely.

Nina Hoang: Definitely, regulation 1.07.

Mathew Reiman: Oh for sure. I mean, look, you know, this is a classic example of an employee trying to stand in the way of the sort of performance of the work of the business.

Nina Hoang: Yes.

Mathew Reiman: You know, like here, we know that Joe had said it’s an OH and S assessment. So number one, that’s really important, but it’s also part of him discharging the duties of the business. The business needs to know what the feedback and assessment from the clients are about certain aspects. And her standing in the way of that really is serious misconduct because she has a duty to cooperate. She has a duty to comply with lawful and reasonable directions, now look, maybe Joe didn’t formalise the lawful and reasonable direction.

Nina Hoang: I think it was implied.

Mathew Reiman: Well, that’s exactly right, you know, there is no suggestion that every lawful and reasonable direction has to be carried out in that way.

Nina Hoang: No.

Mathew Reiman: It’s got to be, you know, so direct and in writing. So-

Nina Hoang: Yeah.

Mathew Reiman: Absolutely.

Nina Hoang: And particularly as they were dealing with, you know, older patients who, like, their safety considerations probably changed.

Mathew Reiman: Yeah.

Nina Hoang: If something happened to them, the company definitely could have been prosecuted.

Mathew Reiman: Yeah.

Nina Hoang: So definitely serious misconduct. Did Mandy’s comments to Bob Lemke amount to serious misconduct? And if so why?

Mathew Reiman: Yeah, look, I think, it certainly was misconduct here.

Nina Hoang: Yeah, this is the one where she told the client.

Mathew Reiman: So, you know, look, she was dishonest based on our understanding of the facts. So I think there’s a basis to say that does get to the serious misconduct threshold.

Nina Hoang: She’s definitely not acting in line with her duty to act in the best interest of the business.

Mathew Reiman: No, and if we assume of course that there’s something written like that into a contract which or every contract should, I think that’s a pretty clear example. If we, you know, even if it didn’t get that high that sort of direct disparagement of the business-

Nina Hoang: Yeah.

Mathew Reiman: It would not be hard to get that underlined as misconduct, at the very least.

Nina Hoang: Yeah. Terrible. Did Mandy’s refusal to participate in the investigation process amount to serious misconduct and further, would it be reasonable to say the refusal undermined trust and confidence in the ongoing employment relationship?

Mathew Reiman: Yeah, well look again, a duty to cooperate with the employer implied a common law here. So she has failed to cooperate with what the employer wanted and again, the lawful and reasonable direction.

Nina Hoang: Yeah.

Mathew Reiman: So again, it’s lawful on the basis of all those common law duties and it was reasonable in this circumstance.

Nina Hoang: Yeah.

Mathew Reiman: You know, there was a serious complaint made by two clients and then, and from her direct boss about her conduct in the workplace.

Nina Hoang: Yep.

Mathew Reiman: And then that’s the proper basis to go with the investigation and then she’s just outright refused.

Nina Hoang: Yep.

Mathew Reiman: Then she’s provided the medical evidence. Yes, she’s entitled to do that. There’s then been that further opportunity provided and instead of engaging with that she’s just outright refused to participate at all.

Nina Hoang: Yeah.

Mathew Reiman: So, at the end of the day, her refusal wasn’t based on anything valid or protected for herself.

Nina Hoang: Exactly. Okay. Is there any more questions?

Mathew Reiman: Yes.

Nina Hoang: Oh yeah. Okay.

Mathew Reiman: Yeah. We do have more questions.

Nina Hoang: If Dion proceeds to terminate Mandy using a correct process, could Mandy successfully mount a general protections claim? So this is an interesting one because I think everyone goes to temporary absence. You know, she was sick. She was sick for up to three months, not more than so, you know, that doesn’t meet the temporary absence test, but it’s a complete red herring by Andrew.

Mathew Reiman: Yep. Absolutely. Classic Andrew red herring.

Nina Hoang: It wasn’t the reason for the termination. It wasn’t even in the decision maker’s mind. So you couldn’t ever say it was a substantive and operative reason. Time and time again, we have clients who are undertaking you know, an investigation into serious misconduct. The employee goes on sick leave and they say, oh my gosh we can’t do anything.

Mathew Reiman: You got to drop it. Yeah.

Nina Hoang: Yeah. It means that we are basically shackled to this employee. That’s not true.

Mathew Reiman: No.

Nina Hoang: Like if you’ve got genuine valid reason that has nothing to do with a workplace right, then you can well and truly terminate on that basis. Yes, she might mount a general protections claim but she’s never going to succeed if you’ve got the evidence.

Mathew Reiman: Absolutely. That’s the key part. Never going to be successful in those circumstances, for sure.

Nina Hoang: Yeah. So could Mandy bring a successful worker’s compensation claim?

Mathew Reiman: Yeah, look, again, no, I mean the carrying out of the investigation was done, clearly documented. It was reasonable in that context. But then again, Dion has gone above and beyond to be reasonable in the circumstances.

Nina Hoang: Yeah.

Mathew Reiman: You know, giving her the time, accepting the evidence, inviting more evidence. Those are things that are going to demonstrate that carrying it out in a reasonable manner up to really, you know, starting that application.

Nina Hoang: And the last one, could they say psychological hazards? Look, she might try to say it was bullying or something like that, but if they investigated, they’d say this was things that had come out of a lawful and reasonable process. So she’d never succeed with WorkSafe either.


Mathew Reiman: Alright.

Nina Hoang: We just made it in time.

Mathew Reiman: Yeah I know, we did. That timing, it flies. Yeah, there you go, well.

Nina Hoang: Yeah. This is Andrew’s fault, though.

Mathew Reiman: No, that’s right. That’s fair. He’d left us with a good one, didn’t he? Yeah.

Nina Hoang: Thank you all for watching.

Mathew Reiman: Thanks for tuning in.

Nina Hoang: Please give us a thumbs up and going to catch us next time.

Mathew Reiman: Yeah. See again soon.

Nina Hoang: Bye.

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At this week’s Friday Workplace Briefing, Andrew and Nina look into the rise of the Fair Work Commission under Labor and what this means for powers over gig workers and independent contractors. To view the full episode and catch up with the week’s latest news and developments please visit this link.