Workplace Investigations

Overview

Workplace investigations are a critical part of how employers respond to complaints, allegations, and incidents in the workplace. Whether the issue involves alleged misconduct, bullying, harassment, discrimination, or a breach of policy, the quality of the investigation often determines the legal defensibility of whatever decision follows — including any decision to discipline or dismiss.

There is no single statute that prescribes how a workplace investigation must be conducted. However, the principles of procedural fairness — which are embedded throughout the Fair Work Act 2009 (Cth), anti-discrimination legislation, and the general law — set clear expectations. An investigation that is biased, incomplete, or conducted without affording the respondent an opportunity to understand and respond to the allegations against them can undermine an otherwise sound outcome and expose the employer to significant legal risk.

Investigations are rarely straightforward. They involve managing competing interests — the complainant’s right to have their concerns taken seriously, the respondent’s right to procedural fairness, the employer’s obligation to provide a safe workplace, and the need to preserve working relationships where possible. Getting the process right requires a clear methodology, an understanding of the legal framework, and the ability to make findings on contested facts.

Key Considerations

The decision to investigate — and the scope and form of the investigation — should be made deliberately. Not every complaint warrants a full formal investigation. Some matters may be more appropriately resolved through a preliminary assessment, a mediated discussion, or informal management action. However, where the allegations are serious, where there is a risk to safety, or where the outcome may involve disciplinary action, a formal investigation will usually be necessary to ensure the process is defensible.

Procedural fairness is the foundation of a legally sound investigation. At a minimum, this requires that the respondent be informed of the substance of the allegations against them in sufficient detail to enable a meaningful response, that they be given a reasonable opportunity to respond before any findings are made, and that the investigator approach the matter with an open mind. A failure to afford procedural fairness is one of the most common bases on which subsequent disciplinary action — including dismissal — is successfully challenged.

The investigator must be, and must be seen to be, impartial. This does not necessarily require an external investigator in every case, but the person conducting the investigation should have no prior involvement in the subject matter, no personal relationship with the parties that could give rise to an apprehension of bias, and no stake in the outcome. Where the matter is serious or politically sensitive within the organisation, appointing an external investigator can provide both rigour and credibility.

Findings should be made on the balance of probabilities, applying the Briginshaw principle — that is, the more serious the allegation, the more persuaded the decision-maker needs to be before making an adverse finding. The investigator should weigh the evidence, assess credibility where accounts conflict, and reach clear conclusions expressed in measured, precise language. Vague or equivocal findings are of limited utility to the decision-maker and may not withstand scrutiny in subsequent proceedings.

Confidentiality must be maintained throughout the process, but it is not absolute. Parties should be told that the matter is confidential and that they should not discuss it with colleagues, but the employer cannot guarantee complete confidentiality — particularly if the matter proceeds to external litigation or a regulatory body. Equally, imposing overly broad confidentiality directions may itself raise concerns about adverse action if it inhibits an employee from exercising a workplace right.

The investigation report and its findings do not exist in isolation. They inform a decision — and that decision must also be made fairly. The decision-maker should be someone other than the investigator, should consider the findings alongside any mitigating circumstances, and should ensure that the disciplinary response is proportionate to the conduct established.

How We Can Help

We advise employers on all aspects of workplace investigations — from determining whether a formal investigation is warranted, through to scoping terms of reference, conducting or overseeing the investigation itself, and advising on outcomes. We also act as external investigators where independence is required, and we represent both employers and employees in proceedings that follow an investigation.

Whether you are responding to a complaint and need guidance on process, or you are concerned about the fairness of an investigation being conducted in your workplace, we can provide clear, practical assistance.

Speak With Our Team

If you are dealing with a workplace investigation — whether you are an employer managing the process or an employee who is the subject of or a party to an investigation — we are happy to discuss your circumstances in confidence.