Workplace investigations are increasingly vital for Australian businesses, driven by a rise in misconduct complaints and stricter legal obligations. A properly executed investigation is essential for demonstrating procedural fairness and protecting an organisation from significant legal and financial consequences.
Why Investigations Are Crucial
The importance of workplace investigations stems from several factors:
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Increasing Complaints and Claims: Reports of workplace misconduct, bullying, and harassment are rising across industries. Concurrently, applications for unfair dismissal and General Protections claims to the Fair Work Commission (FWC) have surged by 27%, reaching over 40,000 claims, making the risk of litigation higher than ever.
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Legal Obligations: Employers operate under a complex legal framework requiring fair and proactive handling of misconduct. This includes the duty to manage psychosocial hazards under the Work Health and Safety Act 2011 (Qld) and the positive duty to eliminate harassment under Respect@Work Reforms and the Sex Discrimination Act 1984 (Cth). Formal investigations are a key way to demonstrate compliance.
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Mitigating Risk: Poor investigations can lead to severe consequences, including costly reinstatements or compensation, damages and legal costs from discrimination or harassment complaints, and reputational damage. The lack of a fair process can be deemed “harsh, unjust, or unreasonable,” as per Section 385 of the Fair Work Act 2009 (Cth).
The Three Pillars of Sound Investigations
A legally robust investigation relies on three core principles, often referred to as natural justice:
- Procedural Fairness: This involves informing the employee of the allegations in clear, specific terms and giving them a genuine opportunity to respond and present evidence within a reasonable timeframe. The FWC considers whether an employer followed applicable disciplinary or investigation procedures, making procedural fairness a key requirement in unfair dismissal claims (Section 387(c)).
- Impartiality and Objectivity: The investigator must be genuinely impartial, with no personal involvement or bias. All parties must be treated equally regardless of personal characteristics, avoiding pre-judgment or leading questions.
- Evidence-Based Decision Making: All findings and disciplinary decisions must be based solely on evidence, not assumptions or hearsay.
The Investigation Process: Best Practice
The process begins with determining the appropriate response based on the nature and severity of the allegations. Serious misconduct, psychosocial/WHS risks, sexual harassment, or discrimination complaints mandate a formal investigation. Minor, isolated incidents may be suitable for informal resolution, such as mediation or coaching.
Planning the Investigation
Once a formal process is chosen, the steps include:
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Defining Allegations Precisely: Clearly articulating the specific conduct being investigated, including dates, times, locations, and involved parties. Vague or broad language must be avoided.
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Identifying Witnesses and Evidence: Listing all potential witnesses and gathering all supporting evidence, such as emails, swipe card data, CCTV footage, or HR records.
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Setting Clear Timelines: Establishing milestones for interviews, evidence collection, and reporting to avoid unnecessary delays.
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Formal Notification: Providing written notification to the respondent and complainant outlining the scope, process, timelines, and their rights.
Gathering Evidence and Interviews
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Types of Evidence: Evidence can be documentary (emails, reports), digital (messages, access logs), or physical.
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Reliability and Custody: Evidence must be verified as authentic and relevant. Key claims should be corroborated through multiple sources. Maintaining a clear Chain of Custody is essential to prevent tampering and ensure legal admissibility.
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Interview Best Practice: Interviews should be conducted in a calm, private setting, and the employee must be offered the ability to bring a support person. The interviewer must take accurate notes and remain impartial, simply presenting the facts and evidence.
Reporting and Outcomes
The Investigation Report must professionally and objectively present the findings. It should summarize the background and process, present findings with supporting evidence, and strictly avoid subjective opinions, relying only on facts. Recommendations must be consistent with workplace policy and may include termination, written warnings, training, or redeployment.
The Role of HR and Legal Oversight
HR plays a critical role in ensuring process integrity and compliance with the relevant laws. HR must maintain neutrality and confidentiality and must step aside if there is a personal or professional conflict of interest.
It is often necessary to seek legal guidance when allegations are complex, involve high risk (e.g., discrimination, sexual harassment), or may result in termination.
Engaging an External Investigator
An external investigator should be engaged when:
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Allegations involve senior staff (executives or managers).
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Situations carry high legal risk.
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There is a perceived or actual bias in internal handling.
Engaging a lawyer or external investigator ensures objectivity, independence, and credibility. Furthermore, engagement through legal counsel can help maintain Legal Professional Privilege over communications and reports, protecting sensitive information from disclosure in court or tribunal proceedings.
How NB Employment Law Assists Employers
NB Employment Law partners with employers to ensure legal compliance and mitigate risks associated with workplace disputes and investigations. Their services, designed to provide expert guidance and a strong legal foundation, include:
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Independent Workplace Investigations: Conducting objective and defensible investigations.
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HR and Management Investigation Training: Providing the necessary training to internal staff to properly conduct investigations.
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Policy and Procedural Audits: Reviewing existing workplace policies and procedures to ensure compliance.
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Advice on Disciplinary Action and Termination: Guiding employers on legal and compliant disciplinary actions and terminations.
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Representation before the Fair Work Commission (FWC): Providing legal representation for employers facing claims.
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Compliance Packages: Offering comprehensive packages, such as the October Compliance Month special, which includes a Workplace Sexual Harassment Plan, Full Suite Employment Contracts, and a full Company Manual for only $4950.00 excluding GST.