HR Management
Workplace Investigations: When and How to Investigate
When a serious complaint is raised — whether about bullying, harassment, discrimination, theft, or safety — a proper investigation is essential. A fair, thorough investigation protects your business, demonstrates compliance, and provides the evidence needed to make defensible decisions.
What the Law Says
While no single law prescribes how to conduct a workplace investigation, multiple frameworks require or expect employers to investigate complaints:
- The Fair Work Act expects employers to investigate allegations before taking disciplinary action.
- The WHS Act requires employers to investigate incidents and hazards.
- Anti-discrimination legislation expects employers to take complaints seriously and investigate.
- Natural justice principles require that both parties are heard and the process is fair and unbiased.
What Employers Must Do
Assess whether an investigation is needed
Not every complaint requires a formal investigation. Assess the seriousness, the evidence available, and whether informal resolution is appropriate.
Appoint an appropriate investigator
Choose someone who is impartial, trained in investigation techniques, and has no conflict of interest. Consider an external investigator for serious matters.
Plan the investigation
Define the scope, identify witnesses, plan interview questions, and set a timeline. Document your investigation plan.
Conduct fair interviews
Interview the complainant, respondent, and witnesses separately. Allow support persons, take detailed notes, and avoid leading questions.
Make findings on the balance of probabilities
Assess the evidence objectively. Make findings about each allegation based on what is more likely than not.
Document a comprehensive report
Prepare a written report covering the allegations, evidence, findings, and recommendations for action.
Common Mistakes and How to Avoid Them
Mistake: Not investigating at all
Fix: Ignoring complaints exposes you to WHS prosecution, FWC findings of unfairness, and vicarious liability for discrimination.
Mistake: Using a biased investigator
Fix: If the investigator has a conflict of interest or a predetermined view, the investigation is unfair. Use an independent person.
Mistake: Not providing natural justice to the respondent
Fix: The respondent must be told the specific allegations, given the evidence against them, and allowed to respond. Anything less is procedurally unfair.
Mistake: Taking too long
Fix: Investigations should be completed as quickly as practicable. Delays cause stress, may result in evidence degradation, and suggest the employer is not taking the matter seriously.
Penalties and Consequences
A flawed investigation can result in unfair dismissal findings (if action is taken based on a deficient investigation), discrimination and bullying claims (if complaints are not properly investigated), WHS penalties for failing to investigate incidents, and general protections claims for adverse action based on flawed findings.
When to Get Professional Help
Jordan Firme Business Consultants provides independent workplace investigations for complaints of bullying, harassment, discrimination, and misconduct.
Frequently Asked Questions
Use an external investigator when the complaint involves senior management, the matter is complex with multiple allegations, there is a conflict of interest for internal investigators, the matter may result in legal proceedings, or the complaint involves sensitive matters like sexual harassment.
Simple matters: 1-3 weeks. Complex matters with multiple witnesses: 4-8 weeks. Very complex matters: up to 12 weeks. The key is to balance thoroughness with timeliness.
There is no automatic right to legal representation in workplace investigations. A support person is appropriate, but their role is to provide emotional support, not to advocate or answer questions on behalf of the respondent.
Workplace investigations use the civil standard: balance of probabilities (more likely than not). This is a lower standard than criminal proceedings (beyond reasonable doubt). However, for more serious allegations, the Briginshaw principle requires the evidence to be of a quality commensurate with the seriousness of the finding.
Yes, you should inform the complainant of the outcome and any actions taken, while respecting the privacy of the respondent. You do not need to provide every detail, but the complainant should know their complaint was taken seriously and whether it was substantiated.
Need an Independent Investigation?
Our HR consultants conduct fair, thorough workplace investigations and provide clear, actionable findings.
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