Can An Employee “Take The Fifth”?

Can An Employee “Take The Fifth”?

Workplace investigations are funny things.

There is no legislation covering them, though if they are done wrong, they can end up in the relevant court, commission or tribunal. Where everything could be placed under a microscope.

We have seen unfair dismissal applications succeed because the dismissed employee wasn’t allowed to have a support person present.

And, we have also seen the Fair Work Commission clarify that a support person is there to provide support.

Not to advocate on the employees behalf. (This excludes lawyers too).

So, what are we supposed to do if an employee decides to take the fifth and exercise their implied right to silence?

The best thing to do is to let them.

Though in the process remind them that as the workplace investigation has the balance of probabilities as the standard of proof, if they don’t present their version of events, the finding may go against them.

If they still won’t answer anything, then so be it.

If the workplace investigation is into something such as fraud, workplace violence, or anything that has the potential to be a criminal act, report it, and leave it up to law enforcement to investigate.

As workplace investigator, we have no special coercive powers or special legal authority.

And, remember, we are not there to prove someone’s guilt or innocence, we are there to report on whether a complaint has been substantiated or not substantiated based on the balance of probabilities.

It is time to stop thinking up ways to make workplace investigations harder and more complex.

IR Simplified offers a training course to help you to conduct compliant and low risk workplace investigations.

This training is 100% online, lifetime access, and regularly updated.

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