My Criminal Law Client is Facing a Workplace Investigation: What Should I Do?

Recently, I presented at the Law Society of Tasmania’s 2025 Criminal Law Conference in Hobart on the topic Drugs, Weapons, and Illegal Activity in the Workplace: What Criminal Lawyers Should Know. This topic involved a mixture of employment law and criminal law issues, and particularly, issues at the intersection of criminal law and employment law. There was subsequently some interesting discussion regarding the best way to approach a situation where a client is involved in both a criminal investigation and a workplace investigation concurrently.

While the client may be content to be interviewed by an employer in relation to a workplace investigation, they may not want that interview to be subpoenaed by police in relation to the criminal investigation. Equally, declining to be interviewed on the workplace investigation for fear of it jeopardising the criminal matter may have unwanted consequences for their employment.

For lawyers who find themselves in this predicament, there are some options open to clients which are outlined below.

Written Correspondence
In circumstances where an employee would prefer not to give an oral statement in relation to a workplace investigation, they may request to respond to the allegations in writing. A criminal lawyer can then assist in reviewing the employee’s written response to the allegations. This is a helpful strategy in controlling the flow of information.

However, it is important to be mindful that employers may refuse the request to provide a response in writing (particularly in circumstances where neither an Enterprise Agreement nor a workplace policy make allowance for this). Accordingly, be aware that an employer may issue a lawful and reasonable direction for the employee to attend the investigation interview and respond in person.

Involving a Support Person
If the employee is compelled to attend the investigation in person, they may wish to bring a legal representative as a support person.

Under section 387(d) of the Fair Work Act 2009 (Cth), the unreasonable refusal of an employee’s request to be accompanied by a support person during a workplace investigation may be a factor which may go towards any subsequent dismissal being considered harsh, unjust, or unreasonable (and therefore unfair). A support person can include a lawyer. However, it is important to note that the support person is in attendance to provide emotional support for the individual, and therefore the support person should not generally speak on behalf of the employee.

It could be argued that the presence of a lawyer during the workplace investigation is necessary due to the ongoing criminal investigation and the potential risks involved, and it is valid for lawyers to advise their clients not to answer certain questions that may otherwise infringe upon their right to silence in a criminal investigation.

Having a lawyer present and able to advise their client not to answer specific questions during a workplace interview can also assist in controlling the flow of information, which could prove useful in a matter in which there are both criminal and workplace investigations on foot.

However, conversely, while lawyers may advise clients not to answer questions, this may be looked upon unfavourably by an employer in relation to a workplace investigation. Lawyers will therefore need to assess the risks and benefits in the particular situation and advise their client accordingly.

Other Considerations
Standard of proof
In workplace investigations, the standard of proof applied is the civil standard, the balance of probabilities. This means that a fact is considered proven if it is more likely than not to have occurred. In contrast, criminal investigations apply the much higher standard of proof, beyond reasonable doubt. The difference in these thresholds has significant implications.

As the standard is lower in workplace matters, an employee may be found to have engaged in misconduct in a workplace investigation, even though the same facts might not lead to a criminal conviction in a criminal investigation. For instance, an employer may determine that an employee is more likely than not to have committed theft based on the available evidence and therefore proceed with termination of employment or other workplace disciplinary action, whereas a criminal court may find that the evidence does not meet the high standard required to establish guilt beyond reasonable doubt.

Despite the lower standard of proof in workplace investigations, employers must still ensure procedural fairness throughout the investigative process. While workplace investigations do not have the same legal formality or consequences as criminal proceedings, the potential outcomes, including termination of employment or reputational harm, are serious and demand a fair and transparent process.

Ultimately, due to the lower standard of proof in workplace investigations, there may be more findings of workplace misconduct, compared to criminal proceedings commenced and/or prosecutions.

Non-Participation in the Workplace Investigation
If an employee refuses to participate in a workplace investigation, the employer could argue that the employee is disobeying a reasonable direction. The consequences of this are twofold. The first is that this could lead to the employer determining an outcome based on the information it has to hand, which may not take into account any mitigating circumstances of the employee. Secondly, the employer may also have grounds to dismiss the employee on the basis of their refusal to comply with a reasonable and lawful direction.

However, determining whether a direction to participate in a workplace investigation is reasonable becomes more complex when there is a risk of criminal liability. An instruction might not be reasonable if it compels the employee to answer questions or provide information that could be self-incriminating in a criminal context. For example, if the investigation involves allegations of serious criminal conduct such as: theft, fraud, or assault, and the employee reasonably believes that participation in the workplace process could prejudice their legal position in potential criminal proceedings, it is less likely the direction will be objectively viewed as reasonable. In such cases, the employee might assert their right to silence or seek legal advice before engaging with the investigation.

What is considered “reasonable” in this context will therefore depend on several factors:

• the seriousness of the alleged conduct;
• whether the conduct is work-related; and
• the specific questions being asked.

If the conduct under investigation is directly related to the workplace and the questions posed by the employer are framed to gather information for internal purposes, rather than for referral to police, the direction to participate is more likely to be seen as reasonable.

Notwithstanding the above, given the potential for imprisonment and other serious consequences if a client is found guilty of a criminal offence, criminal lawyers may elect to take a cautious approach with respect to their client’s participation in a workplace investigation.

Speed of the Investigation
The employer may place the employee on paid suspension while a workplace investigation is ongoing. It is common for an employer to suspend on full pay (as unpaid suspension may lead to employment claims such as unfair dismissal, general protections, or breach of contract claims). Paid suspension is likely to be beneficial for the employee, and serves two purposes:

• it prevents the employee from suffering financial loss; and
• it encourages investigations to be undertaken within a reasonable timeframe (given the employer is continuing to pay the employee’s salary while the employee is not working). This can help mitigate against any reputational damage to the employee caused by prolonged investigations.

Criminal and Employer Investigations
It is important to understand that criminal investigations and workplace investigations are separate matters. While the police may not share the outcome of their investigation with the employer, this should not delay the employer from conducting their own investigation. Similarly, the employer should not rely on the outcome of the criminal investigation to determine the outcome of their workplace investigation.

While we have seen matters in which a criminal investigation is concluded before the workplace investigation is undertaken, from the perspective of a criminal client it would likely be better to advocate for an expedited workplace investigation to avoid unnecessary delays and ensure that the investigation remains fair. It is important to remember that at this stage, the employee is only facing allegations. The employee should not be penalised by the employer if, given the facts and on the balance of probabilities, the employer considers the allegations to be unfounded.

Key Advice
Criminal lawyers should advise their clients to take proactive steps in protecting their rights while navigating workplace investigations. These steps include:

• Requesting the presence of a legal representative as a support person during a workplace investigation which involves criminal aspects.
• Enlisting the assistance of a lawyer to review documentation, if a written response is required in the investigation.
• Ensure your client is being remunerated during their suspension, otherwise they may allege that they have been constructively dismissed from their employment, giving rise to potential legal claims.

By adopting these strategies, criminal lawyers can help their clients manage the complexities of facing a workplace investigation while also protecting their rights in the context of a criminal investigation.

HWLE have experienced workplace relations lawyers with significant experience in advising on all aspects of workplace relations law, as well as undertaking workplace investigations on behalf of employers. Please don’t hesitate to reach out to partners Jessica Nicholls or Sarah Sealy if you have any questions.

Author
Aleksandra Golat

Contacts
Jessica Nicholls (jnicholls@hwle.com.au)
Sarah Sealy (ssealy@hwle.com.au)

June 2025