Navigating the complexities of workplace investigations involving allegations of criminal conduct

Written By Jason Papoutsis – Litigation Lawyer

When workplace investigations involve allegations which may amount to criminal conduct, a different legal strategy is almost always required to protect the client’s interests.

Employees who face serious allegations of criminality in a workplace environment may be in a position where they risk not only losing their job, but also face criminal sanctions (which may include imprisonment).

In these cases, employers will also need to be careful on how they handle the investigation and disciplinary process, since there is often significant overlap between the criminal law and employment law aspects of the matter, which are often difficult to navigate.

When an employee becomes aware of that they are the subject of a workplace investigation which involves allegations of criminality (for example, violent assaults, stealing, sexual assault, fraud, etc), they should take steps to immediately contact a law firm experienced in dealing with both criminal and employment law aspects of that matter.

Potts Lawyers is experienced at assisting clients in this position and it is important that employees and employers obtain legal advice immediately once an allegation of criminality arises in the workplace.

Initial stages

An employee will usually be notified of an allegation of misconduct by their employer, and if the initial notification is made verbally, a formal letter usually follows to let that employee know that the matter is being investigated.

During the investigative stage, and when there are allegations of criminality, an employer will usually suspend the employee accused of the misconduct and request that they do not contact any other employees, other than the employer’s HR department or that employee’s nominated “support person” within the workplace.

Occasionally, if the allegations are very serious or if the nature of the allegations are complex, independent workplace investigators will be appointed to gather evidence, interview witnesses, and prepare a report for the employer to consider.

 

Is there a police investigation?

Sometimes it is difficult to ascertain whether the police have been involved yet.  In other cases, it will be obvious, including when the accused employee is contacted or approached by the police.

A police investigation must always be treated separately from any investigation instituted by the employer, but they usually run in tandem, and additional considerations are at play when this occurs.  For example, because of the possibility of a criminal proceeding, the collection and preservation of relevant evidence will be a priority for the employer.

Accordingly, the existence of a police investigation presents unique challenges to an employer’s investigation, since the employer may have to assist the police whilst also attempting to abide by its own internal workplace policies and procedures.

The existence, or possible existence, of a police investigation, will greatly influence the way in which lawyers deal with workplace investigations.  Clients should always ask questions to their lawyers about this, and should always fully inform their lawyers on the status of any possible police investigation (if known).

 

Interviews and written responses with the employer where there is police involvement

Workplace investigations involving criminal allegations are complex due to the various ways in which an anticipated or actual parallel police investigation affects the employer’s investigation and the employee’s ability to provide a fulsome response to the allegations.

Even if a person is entirely innocent, participating in an interview with the employer or providing a response in writing to the employer, without the assistance of a lawyer, carries certain risks.  Anything the person says or writes could be provided to the police, and might assist the authorities in building their case against the accused employee, and can be used against the employee in criminal proceedings.

Accordingly, in these cases, employees should always seek legal advice before providing an interview or a written response to their employers during the investigative stage.

 

Getting help responding to Show Cause Letters

Following the investigative stage, if the employer feels that it has gathered enough evidence to substantiate the allegations, it will issue the employee with a show cause letter before it forms a view of the employee’s culpability.

This is because an employer will have to provide the employee with procedural fairness (also known as ‘natural justice’) and as part of that principle, the employee should be given an opportunity to provide a response to the allegations before a determination is made.

There is a variety of reasons why an employee should not attempt to respond to a show cause letter without the assistance of a lawyer.  Those reasons are set out in our article on that issue and can be found here.  However, where criminal allegations exist, the importance of having a lawyer prepare that response is even greater, due to the possible criminal consequences which may apply and since the response can be used in criminal proceedings.

Contrary to the assumption held by many, writing the words “Private and Confidential” in your response letter to your employer, does not preclude the police from still using that response as evidence against the employee, even if it is written by lawyers.

Clients should therefore only discuss the allegations with their lawyers so that they are protected by legal professional privilege, and so that their lawyer can draft a response which balances the criminal law risks but which also meets the employee’s duty of good faith to their employer.

 

Can’t the issue be resolved by making a ‘deal’ out of Court?

For all parties involved, seeking to reach a ‘deal’ where criminal allegations exist in a workplace investigation, is very risky business.

A party (whether they are the employer or the employee) should never attempt to reach a settlement on their own since, in some cases, such a settlement could be unlawful in itself.

This is because in Queensland, the Criminal Code has provisions with respect to “compounding” or concealing certain evidence with respect to certain offences.  This is not a comprehensive description of that offence, as it is cast very wide, and therefore it is possible for an employer or employee to commit a very serious offence without realising it.

Lawyers should always be engaged to assist with any settlement offer or any settlement negotiation in these situations, so that the parties can ensure any agreement reached in the final resolution of the matter is entirely lawful.

 

Why Potts Lawyers?

Where workplace investigations involve elements of criminality, Potts Lawyers has experienced criminal and civil lawyers who work collaboratively with our clients, to ensure that clients receive comprehensive advice on both aspects of their matter, and to ensure they understand how a step in the employment matter might affect the criminal matter (and vice versa).

Potts Lawyers has a tried and tested strategy in dealing with these matters, and which accounts for many possible contingencies.  This is required because workplace investigations involving criminal allegations are almost never straightforward, since new developments often arise unexpectedly.   As a result, the approach taken must be flexible to adapt to any changing circumstances, and to account for any possible action being taken by the authorities in tandem.

The complexities of these matters, coupled with the stressors involved, often means that employees facing these allegations are unable to adequately represent themselves.  At Potts Lawyers, we ensure that we provide clients with clear and concise advice so that they can understand, balance, and mange the risks inherent to workplace investigations which involve criminal allegations.

Potts Lawyers is experienced in this area of law and have acted across a wide range of professional misconduct and criminal matters.  If you or a loved one is involved in a workplace investigation, contact Potts Lawyers to talk to one of our lawyers today.