Workplace Investigation — Your Rights (Respondent)
Your employer is investigating you. Here's the checklist of what they MUST do, what they CAN'T do, and what you should do at each stage to protect yourself. Free interactive triage.
Procedural fairness has two parts: right to be heard (told the allegations + a genuine opportunity to respond) AND unbiased decision-maker. Breach of either is grounds for unfair-dismissal claim if termination follows.
8-question rights triage
Answer each question. The first four are the points the law looks at (Fair Work Act s387 and your pay); the rest are good practice. "Unsure" is shown as something to check, not as a gap. This is not legal advice — see a community legal centre, union, or workplace lawyer for advice on your specific situation.
1. Have you been told what the allegations are, in enough detail to understand and answer them (orally or in writing)?
Legal point · Fair Work Act s387(b) — notified of the reason
2. Have you been (or will you be) given a genuine opportunity to respond to the allegations before any decision is made, with enough time to prepare?
Legal point · Fair Work Act s387(c) — opportunity to respond
3. Have you asked to bring a support person to a meeting and been refused?
Legal point · Fair Work Act s387(d) — unreasonable refusal of a support person
4. If you've been suspended, is it on full pay? (Answer Yes if you haven't been suspended.)
Legal point · Employment contract / award — unpaid suspension needs a contractual or award basis
5. Have you received the allegations in writing?
Good practice · Best practice — not required by the Fair Work Act
6. Will you be shown the evidence relied on (documents, witness accounts) before you respond?
Good practice · Best practice — the law doesn't require witness statements to be handed over
7. Is the investigator someone other than the complainant, or a manager with a conflict of interest?
Good practice · Best practice — bias can be an 'other relevant matter' (s387(h))
8. Have you been told you'll receive the outcome (decision and reasons) in writing?
Good practice · Best practice — no general legal right to a written outcome
What a fair process looks like (respondent)
Items 1–3 are the procedural points the Fair Work Commission weighs if a dismissal follows (Fair Work Act s387(b)–(d)). Items 4–7 are good practice — not legal requirements on their own, but reasonable to ask for.
- Know the allegations (s387(b)) — clear enough to understand and answer. "Misconduct" alone is not enough. They don't have to be in writing, but you can ask for written particulars.
- A genuine opportunity to respond (s387(c)) — before any decision. There is no fixed number of days; what is reasonable depends on how serious and complex the allegations are. Ask for more time in writing if you need it.
- No unreasonable refusal of a support person (s387(d)) — at discussions relating to dismissal. The employer doesn't have to offer one, but shouldn't unreasonably refuse your request.
- See the substance of the evidence — enough to respond meaningfully. There is no general right to copies of witness statements, and identities may be withheld.
- An unbiased investigator — the person investigating should not have prejudged the matter. If the investigator is the complainant or has a conflict, raise it.
- Confidentiality — investigations should be kept confidential.
- The outcome and reasons — no general legal right to a written outcome, but asking for one in writing is sensible.
If you're suspended during investigation
Suspension during investigation should be on FULL PAY (not unpaid) unless your contract explicitly allows otherwise. Suspension is not punishment — it's a procedural step. If you've been suspended without pay or for a disproportionate period, get advice from your union or a community legal centre.
FairWork Mate AI
Is the figure right for you?
The advisor reads your payslip, contract or letter against the Fair Work Commission case library and cites the decision behind every answer.
Renews monthly at A$29.99 until you cancel. By continuing you agree to our Terms.
Get pay and rights updates for your job
Free email updates when award rates, the minimum wage or workplace laws change.