How do you manage a workplace misconduct process when police are involved?

From time to time, employers are faced with conduct that requires a workplace response, but is also the subject of a police report or criminal investigation.

Conduct occurring in, or connected to, the workplace may simultaneously constitute workplace misconduct and alleged criminal offending. Navigating those parallel processes can be complex. In addition to police enquiries, regulators, children’s safety commissions, and anti-corruption bodies may also conduct their own investigations and enforcement action.

The good news is that, in most cases, it is possible to continue a workplace misconduct process while a police or other investigation is underway, provided appropriate regard is given to the criminal process and any requirements of police or other law enforcement agencies.

A common misconception is that an employer must simply stop and wait for police to conclude their investigation. That is not usually the case. However, if progressing the workplace process would interfere with the police investigation, the workplace process may need to be delayed or modified.

Importantly, employers should not compromise procedural fairness or natural justice in an attempt to accommodate a police or other process. In those circumstances, it is better to delay than to modify in such a way as to compromise procedural fairness.

When managing a workplace matter that is also under police investigation, employers should consider the following.

Engage with police early

Where appropriate, contact the police officer managing the matter, explain the workplace steps you are considering, and ask whether those steps may impact the investigation.

In our experience, police are generally receptive to workplace processes proceeding, provided those processes do not undermine or compromise a police investigation.

Frame allegations as workplace misconduct

Avoid using criminal terminology when communicating allegations to employees.

Terms such as "fraud", "assault" and "theft" have legal meanings within the criminal justice system. Employers should instead focus on the conduct itself and any alleged breaches of workplace policies, codes of conduct, contracts of employment, or other workplace obligations.

The question for an employer is not whether a crime has occurred, the question is whether workplace misconduct has occurred. The distinction has important implications at each stage of a workplace misconduct process.

Explain delays or changes to participants

Police involvement may require a workplace process to be paused, adapted or conducted differently than originally planned.

Where possible, explain any delays or changes to affected participants, provide indicative timeframes, and keep people informed of material developments. There may be limits on what can be disclosed, particularly where law enforcement agencies have requested confidentiality.

Keep the processes separate

As far as possible, treat the workplace process as a workplace process. Employers are not responsible for investigating crime or determining criminal guilt. Their role is to determine whether workplace standards have been breached and whether any employment consequences are justified.

Maintaining that distinction can assist in preserving procedural fairness and reducing unnecessary complexity.

A few things to keep in mind

Some police, corruption commission, or other law enforcement investigations require a degree of operational secrecy to be effective. Employers should be careful not to inadvertently compromise those investigations through workplace communications or enquiries.

Documents generated during a workplace investigation may also later become subject to a warrant, subpoena, or other compulsory production process.

If you are dealing with allegations that may involve criminal conduct, it is often prudent to obtain legal advice before progressing with your workplace process.

If you would like assistance managing a workplace misconduct process running alongside a police investigation, please get in touch.

Contact: Lachlan Carr, Partner
0419 042 555 | lcarr@angusandcarr.com