Employee misconduct can amount to criminal conduct. An employer that is investigating allegations that such misconduct has occurred may face resistance from the employee on grounds that it might harm their capacity to defend themself in any future criminal process involving the conduct.

In circumstances where the employer has no right to compel the employee’s cooperation in the investigation, the employee is unable to claim a privilege against self-incrimination. Yet any voluntary admissions may affect any subsequent criminal investigation.

Dealing with misconduct that may amount to criminal conduct

In University of Queensland v Y (2020), a final-year university student was the subject of an internal disciplinary proceeding following a complaint that he had sexually assaulted a fellow student. The accused student applied for an injunction against the disciplinary proceeding, arguing that the Board did not have jurisdiction to make findings in relation to allegations of criminal conduct.

The trial judge found the Board could not consider whether the alleged conduct breached its policies without determining whether it had taken place. As the Board was not a criminal court, it was not qualified to make that finding. As a result, the Board could not hear the matter until a court had found that the alleged behaviour had taken place.

The university appealed the trial judge’s finding. It argued that the only matter to be determined by the Board was whether the student had contravened certain of the university’s rules and policies, and that this could be done without making a finding about the student’s criminal liability. As the student had graduated before the appeal was filed, he counterclaimed that he was no longer subject to the university’s disciplinary regime, and that even if the injunction was lifted, the university no longer had any authority over him.

The Court of Appeal found that the Board did have jurisdiction to investigate alleged conduct despite its potentially criminal nature – but could not do so in this case as it had no power over a former student.

The Court of Appeal rejected the first instance decision that the Board lacked jurisdiction to hear disciplinary matters that involved allegedly criminal conduct. Where the trial judge interpreted the university’s policy as excluding the Board from determining whether allegedly criminal conduct occurred, the Court of Appeal interpreted it as an acknowledgement that the Board could not make findings of criminal responsibility, but only decide whether its rules had been breached. Accordingly, the Board had power to determine whether alleged conduct amounting to sexual misconduct had taken place in breach of the university’s rules and policies.

Although the Board was found to have the power to investigate and make findings about the conduct of current students, the Court of Appeal found its authority did not extend to former students. In reaching this conclusion, the Court of Appeal considered several factors. First, and most tellingly, the relevant polices related explicitly to current students, staff and others. Second, none of the penalties the Board of Appeal could impose were appropriate for a former student. Third, even if former students were susceptible to disciplinary proceedings, there was no limitation period or allowance that circumstances in delayed proceedings against former students might make the process unworkable.

Lessons to take away from this case

This case demonstrates that internal administrative and disciplinary procedures are not barred from dealing with conduct that may amount to criminal conduct. This is also the case for investigations into alleged misconduct by employees, where that misconduct is relevant to the employment relationship and in breach of the employer’s rules and policies.

Learn more about workplace investigations and how to conduct them in the Employment Law Practical Handbook chapter Workplace investigations.