Allegations of misconduct in the workplace can set off multiple simultaneous processes — an internal investigation by your employer, a complaint to a professional regulator, suspension of professional licences / clearances, and a criminal investigation by police. Each of these processes operate under different rules, different timelines, and different standards of proof. But what happens in one can have serious consequences and practical knock-on effects for the others.

If you are facing allegations in the workplace that may also give rise to criminal charges and/or regulatory action, you may need legal advice that spans all of those processes. At Angus Cameron and Partners, we regularly work alongside employment lawyers at other firms to provide coordinated and confidential advice to clients navigating exactly these situations.

How Workplace and Criminal Processes Interact

When allegations of serious misconduct are made in a workplace setting, the underlying issues and concerns rarely stay within one process for long. An employer may commence an internal investigation and notify third parties e.g. regulators and professional Boards. A colleague or manager may report the alleged conduct to police. A professional body may open its own inquiry and take interim measures. These processes can run simultaneously (or in a particular sequence), and each process generates material that the others may be able to access and use.

The most important thing to understand is that what you say and do in one process can affect your position in another. A statement made in a workplace investigation — even one you participated in believing it was confidential — may later become relevant in criminal proceedings and/or regulatory processes. An admission made to an employer, a response to a show-cause letter, or documents produced in an employment dispute can all resurface in ways that are difficult to anticipate without experienced legal advice across both areas of legal practice. Hence the need for a coordinated approach.

Workplace Investigations

Generally speaking, employers have an obligation to investigate serious allegations of misconduct before taking disciplinary action. From an employer’s perspective, conducting an investigation serves the dual purpose of mitigating the legal risk of employment claims from the employee accused of wrongdoing and discharging their duty of care to other staff and relevant stakeholders (depending on the industrial context, this may include customers, service users, site visitors etc).

These investigations are typically conducted by HR personnel, inhouse counsel, senior management (with support from HR/legal), or by an external investigator engaged by the employer (sometimes through an external law firm).

Workplace investigations are not criminal proceedings — the investigator does not have coercive powers (although the employer may issue a number of ‘directions’ and seek to impose various ‘requirements’ and ‘expectations’ on you), and the standard of proof is the balance of probabilities, not beyond reasonable doubt.

However, a workplace investigation can create significant risks for a person who is also facing or may face criminal charges:

• Anything you say to an investigator may be recorded and could later be disclosed to police or a regulator

• Participating without advice can result in you providing a version of events that is then used against you in criminal proceedings

• Declining to participate may have employment consequences, including termination, but, in some circumstances, may be the right approach

• The documents and records gathered in a workplace investigation may be subpoenaed in subsequent criminal or regulatory proceedings

• Employers who engage an investigator via an external law firm often refuse to share reports and other material arising from the investigation with the subject employee on the basis that they are covered by client legal privilege

• You may be suspended from duty (often immediately and sometimes for an extended period of time), excluded from the workplace, blocked from accessing IT systems, and prohibited from speaking to colleagues

The right approach in any given situation depends on a range of pragmatic and technical factors including where the criminal investigation is up to, the nature of the allegations, the nature and seniority of your employment, the amount of goodwill between you and your employer, whether you are covered by an industrial instrument, and your personal goals / resources. There is no one-size-fits-all answer, which is why coordinated legal advice from both a criminal lawyer and an employment lawyer is essential from the outset.

Criminal Investigations Running Alongside Workplace Processes

In serious cases — allegations of fraud, theft, assault, sexual offending, or other conduct that is both a workplace matter and a criminal offence — police may open a criminal investigation at the same time as the employer is running its own process. The two investigations are independent of each other, and neither is bound by the outcome of the other.

A person found to have engaged in misconduct by a workplace investigation is not automatically guilty of a criminal offence and, conversely, an acquittal in criminal proceedings does not automatically protect a person's employment. The standards of proof are different, the legal tests are different, and the findings operate separately. For example, there is a fundamental difference between sexual assault, on one hand, and sexual harassment, on the other hand.

What the criminal investigation does affect, however, is the advice you should receive about engaging with the workplace process. If police are investigating, your right to silence and the risk of self-incrimination become critical considerations. We work with employment lawyers to ensure that nothing done in the employment context undermines your position in the criminal one.

How We Work With Employment Lawyers

The intersection of employment law and criminal law requires expertise in both – there are very few lawyers who can genuinely lay claim to practice both. Angus Cameron Lawyers do not practise employment law, but we have established working relationships with employment lawyers at other Melbourne firms and regularly refer clients to them — and receive referrals in return — in situations where both areas are engaged.

In practice, this means:

• Advising on the criminal law dimensions while employment lawyers advise on the employment dimensions, with both sets of advice coordinated

• Attending joint conferences with clients and their employment lawyers to ensure both processes are approached consistently

• Advising employment lawyers on matters such as the right to silence, self-incrimination risk, and the implications of producing documents in employment proceedings

• Managing the sequencing of steps across both processes to minimise the risk that action taken in one prejudices the client's position in the other

If you are referred to us by an employment lawyer, or if you come to us first and need an employment lawyer recommended, we can help with both.

Frequently Asked Questions

My employer is investigating me. Do I have to participate?

In most cases your employment contract and organisational policies will require you to cooperate with a workplace investigation, and refusing to participate can lead to disciplinary consequences up to and including termination. However, your obligation to cooperate with your employer does not override your right to silence in relation to criminal matters. Further, if misconduct allegations involve accusations of criminal behaviour, exercising the right to remain silent cannot reasonably be described as wilful disobedience or refusing to participate / cooperate. The right approach depends on a range of factors including the nature of the allegations, whether police are also investigating, what your contract says, whether you are covered by an industrial instrument, and so on. Get legal advice before you attend any investigative interview or provide any written response to your employer.

Can what I say in a workplace investigation be used against me in a criminal case?

Potentially yes. A workplace investigation is not a protected process – even though the employer may describe it as ‘confidential’ and/or ‘legally privileged’. Records of interviews, written responses, and documents you produce can in some circumstances be accessed by police or prosecutors. This is one of the key reasons why getting criminal law advice before engaging with a workplace investigation is important, particularly where the allegations involve conduct that could also constitute a criminal offence.

My employer has reported the matter to police. What should I do?

Contact a criminal lawyer immediately. Do not speak to police, your employer, or anyone else about the substance of the allegations without legal advice. We can advise you on the criminal investigation, liaise with your employment lawyer, and ensure your position is protected across both processes from the outset.

AHPRA is investigating me at the same time as police. How does that work?

AHPRA has its own investigative powers and processes under the Health Practitioner Regulation National Law, which are entirely separate from the criminal justice system. A finding by AHPRA does not determine the outcome of criminal proceedings, and vice versa. However, the two processes can interact — in particular, information gathered by AHPRA may in some circumstances be available to police. We advise health practitioners facing concurrent AHPRA and criminal investigations and work to coordinate the response to both.

Can I be charged with a criminal offence even if my employer clears me?

Yes. A workplace investigation applies a different standard of proof and considers different questions than a criminal investigation. Being found not to have breached your employer's policies, or being retained in your job after an investigation, does not prevent police from charging you or the prosecution from proceeding. The two processes are separate and distinct.

I have been stood down pending an investigation. Can you help?

Yes, in conjunction with an employment lawyer. Being stood down (a.k.a. suspended) is an employment matter and primarily falls within the scope of employment law advice. However, if the investigation involves conduct that could also constitute a criminal offence, the way you respond to your employer during the stand-down period — including any communications, document requests, or interviews — needs to be considered with criminal law advice as well. We can work alongside your employment lawyer to ensure the response is coordinated.

Do I need both a criminal lawyer and an employment lawyer?

Where both processes are running simultaneously, yes. Employment lawyers and criminal lawyers have different expertise and the two areas require different advice. Trying to manage both with one lawyer who practises in only one area creates gaps and risk. We work closely with employment lawyers and can recommend firms with relevant expertise if you do not already have one. The cost of coordinated advice at the outset is invariably less than the cost of unpicking problems created by uncoordinated advice later.

Related Guides

You may also find the following guides useful:

• Guide to Police Investigations — what to do when police want to speak to you

• Guide to Bail in Victoria — if charges are laid and you are taken into custody

• Guide to Summary Proceedings — how criminal charges are dealt with in the Magistrates’ Court