A well-run workplace investigation is one of the strongest risk-management tools an Australian employer has. Done properly, it gives you a defensible basis to act on misconduct. Done poorly, the investigation itself becomes the liability — often costing more than the original complaint.
The difference comes down to process: right scope, procedural fairness, privilege considered early, and the investigator kept separate from the decision-maker.
What’s the real issue?
Most employers get the substance right and the process wrong — they spot possible misconduct, but the way they investigate hands the employee a claim they would never otherwise have had.
Australian tribunals regularly find dismissals unfair even where there was a valid reason to terminate, simply because the process was flawed. The Fair Work Commission looks at how you reached your findings, not just what.
For SMEs, councils and not-for-profits, the natural investigator is often a witness or a conflicted manager — exactly when an independent investigator earns their keep.
What does this look like in practice?
A composite from matters we see regularly (illustrative only, not a real organisation).
A Queensland community services organisation received a bullying complaint against a supervisor. Wanting to act fast, the HR coordinator:
- Interviewed only two people — not the colleagues who witnessed the exchanges.
- Offered no support person to anyone.
- Wrote a report recommending dismissal, signed off by the CEO that afternoon.
One process produced two proceedings: an unfair dismissal claim from the supervisor and, once the complaint circulated among staff, a psychological-injury workers’ compensation claim from the complainant. The failings were textbook — incomplete scope, missing witnesses, no procedural fairness, no support persons, and an investigator who made the disciplinary decision herself.
What does the law say — and how must it be applied?
There is no single “workplace investigations Act”. The key obligations, applied together:
- Procedural fairness and natural justice. The respondent needs particulars of the allegations, a genuine chance to respond, and to raise mitigating circumstances before any decision. The Fair Work Commission has found dismissals unfair — even for genuine misconduct — where the employer refused a support person or decided the outcome first.
- Findings must rest on evidence. Make findings of fact impartially, on the balance of probabilities — more likely than not — using logical, probative evidence.
- Work health and safety duties. The duty of care extends to how people are treated during an investigation. Disclosing allegations to those with no need to know can cause a compensable psychological injury.
- Employee records. Generally exempt from the Privacy Act 1988 (Cth) where handling relates directly to employment — but the exemption is narrow, and confidentiality still bites.
Psychosocial hazard regulation and the positive duty to prevent sexual harassment keep evolving — get current advice before relying on older practice.
What are the risks and pain points for employers?
The recurring problems we see:
- Scope too narrow — obvious witnesses ignored, or steering toward a predetermined outcome.
- Investigator doubles as decision-maker — inviting bias claims.
- No support person — the process looks unfair.
- Reports that overreach — recommending outcomes rather than making findings of fact.
- Lost privilege — over-disclosure, or wrongly assuming a report is privileged.
- Delay — a slow process can turn a valid dismissal into an unfair one.
- Covert recordings, adverse action and defamation — recording rules differ by state; an investigation begun for a prohibited reason can be unlawful adverse action; loose language invites defamation risk.
Our top five tips: what every employer should do
- Get the terms of reference and scope right before you start. Confirm precisely what the allegations are, review the relevant contract, policies, awards and evidence, and define in writing what is and is not being investigated. Failing to follow your own policy can jeopardise any disciplinary action that follows.
- Offer a support person to every person you interview. Not just the respondent — the complainant and witnesses too. It reinforces procedural fairness and natural justice, and helps establish that you took reasonable management action in a reasonable way — central to defending a psychological injury claim.
- Keep the investigator and the decision-maker separate. The investigator gathers facts and reports impartially. A separate decision-maker weighs those findings and decides what discipline, if any, follows. This is one of the strongest safeguards against bias claims — and where an independent investigator adds real value.
- Make findings of fact — not recommendations. The investigation report should set out the evidence and make findings of fact on the balance of probabilities for each allegation, with clear reasons. It should not recommend disciplinary action — that decision belongs to the decision-maker. If recommendations are truly required, keep them in a separate document.
- Think about legal professional privilege from day one. If you may need legal advice or anticipate litigation, engage your lawyers early and structure the investigation so that obtaining legal advice is its genuine dominant purpose. Then protect it: mark documents “Privileged and Confidential”, limit circulation to those who need to know, and be careful what you disclose in any outcome letter.
Frequently asked questions
- Who is entitled to a support person in a workplace investigation?
As best practice, offer one to everyone you interview — complainant, respondent and every witness. The respondent’s entitlement matters most, but offering it to all strengthens procedural fairness and supports a “reasonable management action” defence.
- Should the investigation report recommend disciplinary action?
No. It should make findings of fact on the balance of probabilities and stop there. Deciding on discipline is the decision-maker’s job — a recommendation in the report blurs the roles and can undermine both fairness and privilege.
- What does “balance of probabilities” mean?
The investigator must be satisfied an allegation is more likely than not to be true — around 51%, not the criminal standard of “beyond reasonable doubt”. Findings still have to rest on logical, probative evidence.
- Are our investigation documents protected by legal professional privilege?
Only if created for the dominant purpose of obtaining legal advice or for anticipated litigation. A report produced in the ordinary course of a disciplinary process — even one badged “privileged” — will not attract privilege, and privilege can be waived by disclosing findings too widely.
- Can employees secretly record investigation interviews?
The rules differ by state and territory. In Queensland a party to a conversation may record it, but the Fair Work Commission views covert recording unfavourably. The safest course is to seek everyone’s consent first.
- How quickly do we need to act on a complaint?
As soon as reasonably practicable. Undue delay can render an otherwise valid dismissal unfair and expose you to workers’ compensation and other claims. Timeliness signals you are taking the complaint seriously.
- Do complainants and witnesses get to know the outcome?
Both the complainant and the respondent are entitled to know which allegations were substantiated. Other witnesses are not, and complainants are not entitled to know what disciplinary action, if any, is taken against the respondent.
- When should we use an independent investigator?
Whenever impartiality could be questioned — where the usual investigator is a witness or conflicted, or where the allegations are serious. Independence protects the integrity of the findings and the organisation.
How Harrisons can help
A botched investigation can turn a straightforward complaint into an unfair dismissal claim, a workers’ compensation claim and months of cost — all at once. Getting the process right the first time is far cheaper. We help you do exactly that.
- Independent workplace investigations — we scope the matter properly, observe procedural fairness at every step, and deliver a defensible investigation report with clear findings of fact.
- Role separation and decision support — keeping the investigator cleanly separate from your decision-maker.
- Privilege and process reviews — structuring matters to preserve legal professional privilege, and reviewing your process before you need it.
Facing a complaint of misconduct, bullying, harassment or a serious safety incident? Before you act, have a confidential chat with us about an independent investigation. Get in touch with our team today.
This article is general information only and is not legal advice. Employment obligations vary with your contracts, policies and industrial instruments, and the law in this area continues to develop. Please seek advice tailored to your circumstances.
Claire Harrison is the Founder and Managing Director of Harrisons, a flourishing HR consulting business that sprouted in 2009 from Claire’s passionate belief that inspiring leaders and superstar employees are the key success factor to any business. With over 20 years’ experience, Claire has worked as a HR Director of multi-national organisations, as a Non-Executive Board Director, and a small business owner. Claire’s corporate career includes working with companies such as BHP, Westpac, Fonterra and Mayne Nickless.
