Workplace Investigations - Process & Procedural Fairness

Table of contents

What are workplace investigations?

A workplace investigation is a structured, impartial process designed to gather and analyse facts related to alleged misconduct or policy violations. Investigators aim to determine what actually happened and whether company policies or laws have been breached. This process is important to ensure accountability and guide appropriate corrective action within an organisation.

Workplace investigations should always be conducted impartially, focusing on verifiable evidence rather than opinions. This includes reviewing relevant documents, interviewing witnesses, and carefully assessing the collected information. Workplace investigations can address concerns ranging from harassment and discrimination to safety incidents, ethics violations, and potential criminal offenses.

Why workplace investigations matter

Mishandled investigations can have far-reaching consequences for any business. Firstly, failure to investigate allegations of discrimination, harassment, or safety violations properly exposes a business to significant legal risks. This can present in the form of costly lawsuits, regulatory fines, and penalties. Mishandling complaints also leads to severe reputational damage. A workplace that gains a reputation for ignoring problems or conducting unfair investigations will struggle to attract and retain top talent.

Most importantly, unresolved workplace issues deeply impact employee wellbeing and morale. When employees feel unsafe, disrespected, or perceive that their concerns are not taken seriously, a toxic environment forms. This leads to increased stress, higher absenteeism, and a significant drop in productivity.

Properly conducted workplace investigations promote a workplace where employees feel heard and protected. This demonstrates the business' commitment to a fair and respectful work environment, ultimately boosting morale and overall well being.

This guide is designed for HR professionals and business leaders who are responsible for creating and maintaining a fair, compliant, and safe workplace. It provides a thorough understanding of the workplace investigation process, as well as guidance on when to initiate an investigation and how to conduct one effectively.

When is a workplace investigation necessary?

Not every complaint or conflict requires a full-fledged workplace investigation. However, certain situations demand thorough review to protect both employees and the business. Consider these key factors when assessing the need for an investigation:

Seriousness of allegations

Allegations that pose a significant risk of harm always demand a formal workplace investigation. This includes several categories of misconduct:

Any behaviour that disadvantages an employee based on race, gender, sexual orientation, age, disability, religion, or other protected characteristics must be investigated. Discrimination is a direct violation of laws like the Fair Work Act, and investigations uphold the business' responsibility to provide a bias-free workplace.
Harassment and sexual harassment, ongoing bullying, or any actions contributing to a hostile work environment. Investigations help establish if the behaviour is a pattern rather than an isolated incident, and whether it negatively impacts the work life of those involved.
Serious safety violations, accidents, or near-misses require thorough investigation to pinpoint the root cause. This is essential for ensuring compliance with Work Health and Safety (WHS) laws and preventing similar incidents from harming employees in the future.
Allegations of theft, fraud, assault, or any other criminal offenses must be investigated fully. These investigations often involve cooperation with law enforcement to ensure appropriate action is taken.

Potential legal impact

Several types of allegations create substantial legal risks, making thorough investigations vital for an organisation's compliance and protection.

Complaints stemming from discrimination, harassment, or unfair dismissal have a direct connection to the Fair Work Act. A properly conducted workplace investigation demonstrates the organisation's commitment to upholding the principles of this legislation, offering a strong defense if the situation escalates legally.

If an employee claims their employment contract was violated, an investigation plays a crucial role in establishing the facts surrounding the allegation. This process determines whether the terms of the contract were indeed breached, informing the organisation's subsequent actions.

While less severe instances of bullying and harassment may be managed informally, repeated or severe cases of bullying and harassment carry potential legal risks. Investigations help the organisation assess whether the alleged behaviour crosses legal thresholds, enabling them to take steps to mitigate liability and protect employee wellbeing.

Alternative approaches

For less severe workplace disputes or personality clashes, informal resolution methods may be more suitable than a full-scale investigation. Mediation, where a neutral third party facilitates discussion between the involved individuals, can often resolve conflicts when both parties are willing to participate. This is particularly useful for misunderstandings or communication breakdowns.

Additionally, managers who are trained in conflict resolution may sometimes be able to address minor concerns, helping restore positive working relationships before a situation escalates.

Even if a formal investigation isn't initially deemed necessary, businesses should always document all complaints and informal resolution efforts. Situations can escalate, and this documentation protects the organisation if an investigation becomes necessary later.

When allegations are serious, have potential legal consequences, or when informal methods fail, a workplace investigation is the most appropriate tool for upholding procedural fairness, protecting employee rights, and ensuring a safe and compliant work environment.

Workplace Investigations Australia - Employment Compass

The role of HR in workplace investigations

HR professionals are central figures in any workplace investigation, regardless of whether they conduct the process themselves or manage an external investigator. Let's break down their responsibilities.

To investigate internally or outsource?

The first step for HR when a complaint arises is deciding whether to conduct the investigation internally or bring in an outside expert. This decision hinges on several important factors:

If the allegation is particularly complex, sensitive (e.g., involving senior management or deep rooted company culture concerns), or likely to require specialised expertise, an external investigator may be the most appropriate choice.
HR needs to honestly assess their team's capacity. Do they have the time, resources, and necessary expertise to conduct a thorough, timely investigation while also attending to their regular HR duties?
Are there internal relationships or dynamics within the situation that could create concerns of bias, both real or perceived? An external investigator guarantees neutrality and protects the integrity of the process.

Internal vs. external workplace investigators

Investigator Type	Pros	Cons
Internal Workplace Investigators	Cost-effective In-depth knowledge of the organisation and its culture Potential for quick resolution in straightforward cases where HR has the relevant experience	Requires significant HR time/resources Risks of perceived bias, especially in cases involving close relationships within the company May lack specialised expertise in complex situations, sensitive matters, or those with significant legal implications
External Workplace Investigators	Guarantees impartiality and objectivity Brings specialised expertise, particularly for complex, sensitive, or legally-risky investigations (e.g., in-depth knowledge of discrimination laws) Frees up HR for core duties, especially during lengthy or demanding investigations	Higher financial cost May take longer for initial onboarding and familiarisation with the company specifics

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Preparing for a workplace investigation

Regardless of whether the investigation is handled by internal HR or an external specialist, the HR department plays a critical role in laying the groundwork for a smooth, procedurally fair process. Here's the essential checklist:

Take immediate action to preserve any potential evidence relevant to the complaint. This includes emails, documents, security footage, or any other materials that might shed light on the situation.
Create a comprehensive plan outlining the scope of the workplace investigation, a realistic timeline, a list of individuals to be interviewed, and the key questions to be explored. This plan provides structure and focus for the workplace investigation.
Notify the complainant, the respondent, and any potential witnesses in a clear, confidential, and timely manner. This notification should outline the process, expectations, and support services available.
Explain the workplace investigation steps to all those involved, emphasising their right to access support services such as the Employee Assistance Program (EAP) or counseling. Underscore the organisation's commitment to protecting all parties from any form of retaliation.
Maintain detailed records of every action, communication, and decision related to the workplace investigation. This documentation is important for upholding the credibility of the process and ensuring transparency.

HR professionals are the guardians of procedural fairness and play a fundamental role in ensuring compliance throughout investigations. Whether they handle the workplace investigation themselves or work with an external provider, their diligence, focus on impartiality, and commitment to employee rights lay the foundation for a successful resolution and a healthy work environment.

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Key principles of workplace investigations

To ensure a workplace investigation is effective and defensible, several key principles must be upheld. These principles safeguard the integrity of the process and protect the rights of all involved.

Procedural fairness

Both the complainant and the respondent have the right to a fair process. This includes being informed of allegations, having the opportunity to present their version of events and evidence, and understanding how decisions will be made. For example, both parties should have the option to be accompanied by a support person during interviews.

Confidentiality

Workplace investigations handle sensitive information. Respecting confidentiality means limiting the people who know about the workplace investigation, securely storing evidence, and not disclosing details to individuals uninvolved in the process.

Impartiality

The workplace investigator must be neutral and avoid any bias or prior assumptions. They evaluate facts without favoring either the complainant or the accused. For complex cases or where there might be a perceived conflict of interest, hiring an external workplace investigator ensures impartiality.

Thoroughness

The workplace investigation must gather and examine all relevant evidence, follow all logical lines of inquiry, and leave no stone unturned in uncovering the truth. This might involve multiple witness interviews, reviewing company policies, and examining a range of documentation.

Timeliness

Investigations should proceed with reasonable speed and avoid unnecessary delays. This minimises disruption to the workplace and helps provide swift resolution for those involved. However, timeliness should never sacrifice thoroughness.

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Step-by-step workplace investigation process

The workplace investigation process begins with a formal complaint or an issue raised to HR or a Manager. HR assesses the severity of the allegations, potential legal implications, and the necessity for a full investigation. At this stage, it's determined whether to investigate internally or outsource (this is where HR's guidance from the above section will be vital).

Immediately preserve all potential evidence (emails, security footage, documents, etc.). Create a detailed investigation plan outlining the scope of the investigation, the timeline, individuals to be interviewed, and key questions and areas of inquiry.

Interview the complainant, the respondent, and relevant witnesses in a confidential setting. Gather documentation, statements, and other forms of evidence while adhering to procedural fairness. Approach interviews with impartiality, actively listen, and take careful notes.

Thoroughly review all gathered information including interview transcripts, documents, and physical evidence (if applicable). Objectively assess the evidence against relevant laws, policies, and workplace standards. Formulate draft findings, clearly stating whether the allegations are likely substantiated, unsubstantiated, or inconclusive based on the balance of probabilities.

Prepare a comprehensive report outlining the investigation process, the evidence analysed, and your findings. Include recommendations for corrective actions including disciplinary action (if warranted), policy changes, training, or any other remedies. Share the report with relevant decision-makers in a timely manner.

Decision-makers should carefully review the report and recommendations. Implement appropriate outcomes following recommendations, ensuring due process and fairness. Provide adequate support and communication for those involved. Consider preventative measures to address any systemic issues identified during the workplace investigation.

Following the correct investigation procedure is important and if not done properly, employees might claim unfair dismissal. The Fair Work Commission expects employers to demonstrate that any investigation into a grievance or complaint was conducted carefully and impartially before proceeding to formal disciplinary action.

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Workplace investigation outcomes

The outcome of a workplace investigation hinges on the specific evidence gathered and the severity of the allegations made. Here's a breakdown of potential outcomes and the corrective actions they typically warrant.

Substantiated allegations

‍When the workplace investigation determines sufficient evidence supports the complaint, disciplinary action becomes necessary. The consequences should align with the nature of the misconduct and your organisation's policies. This could range from a formal warning, performance management, demotion, or in severe cases, termination of employment.

Unsubstantiated allegations

‍If the evidence doesn't clearly support the claims of misconduct, disciplinary action may be inappropriate. However, this doesn't mean the situation should be ignored entirely. Consider offering training, mediation, or counseling to address workplace dynamics, prevent future conflicts, and demonstrate that employee concerns are taken seriously, even when misconduct cannot be proven.

Inconclusive

‍Sometimes, workplace investigations cannot definitively establish whether misconduct occurred. This points to a potential weakness in internal policies and procedures. Review existing policies to identify ambiguities or loopholes that could impact future investigations. Strengthening your guidelines and training investigators may prevent similar inconclusive results.

Additional issues uncovered

‍An investigation may expose problems beyond the original complaint, such as breaches of policy or wider workplace culture issues. It's important to address these additional concerns promptly. This could involve further workplace investigations, policy updates, or targeted training programs designed to create a more respectful and compliant work environment.

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How long do workplace investigations take?

It's important to understand that there's no single timeframe that applies to all workplace investigations. The duration of the process is influenced by several factors. Complexity plays a major role – investigations involving multiple witnesses, extensive documentation, or intricate legal issues typically take longer to resolve than simpler cases.

Also, the availability of key parties, such as the complainant, respondent, and witnesses, can impact the timeline. Delays may occur if individuals are unavailable due to leave, travel, or illness.

Thoroughness is essential in any workplace investigation. Rushing the process increases the risk of mistakes, inconclusive findings, or leaving vital information unexamined. Sometimes unexpected developments arise, such as the workplace investigation uncovering additional concerns that require further inquiry.

Whether you are utilising an external investigator or conducting the process internally can also affect the timeline. External investigators might have a backlog of cases or require time to familiarise themselves with your specific policies.

Striking a balance between timeliness and thoroughness is crucial. Workplace investigations should proceed with reasonable speed to minimise disruption to the workplace and provide swift resolution for those involved. However, it is counterproductive to rush the process at the expense of a fair and just outcome.

Recommendations

To manage expectations, communicate openly with all parties involved from the outset. Emphasise your commitment to a fair and timely process, but acknowledge that unforeseen circumstances may arise. Providing regular updates on the progress of the investigation (while protecting the confidentiality of the process) demonstrates respect for those involved.

Workplace investigations involving potential safety risks, severe harassment, or criminal activity should be prioritised to protect the wellbeing of your employees and your organisation. If a workplace investigation takes significantly longer than anticipated, transparently communicate the reasons for the delay to all parties concerned.

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Additional considerations during workplace investigations

Beyond the core workplace investigation steps, these elements support businesses in upholding fairness, preventing future issues, and ensuring the process aligns with legal and ethical obligations.

Employee support and rights

A workplace investigation must prioritise the rights of all involved. Both the complainant and the respondent have the right to be treated with respect, confidentiality, and procedural fairness at every stage of the process. Be proactive in communicating these rights clearly and transparently to everyone involved.

Offer access to support resources for all parties. This could include the Employee Assistance Program (EAP), external counseling services, or other resources deemed appropriate. Providing support demonstrates your organisation's commitment to the wellbeing of those impacted by the investigation.

Emphasise the organisation's strict zero-tolerance policy regarding retaliation against anyone cooperating with or participating in an investigation. Highlight that any retaliatory action will be met with severe consequences. This creates a safe environment where employees feel empowered to report misconduct without fear of retribution.

Documentation

Meticulous documentation is an absolute must in workplace investigations. It protects the integrity of the process and the organisation in the event of legal challenges. Maintain detailed records throughout, including the initial complaint and responses, the investigation plan, interview notes, a summary of evidence collected, the rationale for your findings, and any resulting recommendations or actions taken.

Post workplace investigation actions

Implement recommendations from the report fairly and promptly. This may involve disciplinary action, policy modifications, or training initiatives.
Use the investigation findings to identify gaps or weaknesses in existing workplace policies. Update policies as needed to prevent similar situations in the future.
Communicate the organisation's commitment to a workplace where employees feel safe reporting concerns. Encourage open communication and proactively address issues before they escalate.

Workplace investigations are not just about resolving single incidents. A thorough approach, focus on employee wellbeing, and commitment to continuous improvement are essential for fostering a healthy, compliant, and respectful work environment.

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The risks of inaction

Failing to take workplace complaints seriously, or mishandling investigations, exposes your organisation to a cascade of negative consequences. The legal risks can be severe, including fines, Fair Work cases, and damage to your hard earned reputation. Remember, cases of unfair dismissal, mishandled discrimination allegations, or unresolved safety issues have the power to make headlines and irreparably harm your brand.

But beyond the immediate legal and reputational costs, inaction breeds a toxic workplace environment. Employees lose trust, morale plummets, and productivity suffers. Ignoring issues signals to employees that their well being is not a priority, and creates an atmosphere where further misconduct or violations may go unreported for fear of reprisal or indifference.

When to seek external support

While internal HR teams may handle less complex investigations, there are scenarios where outsourcing to an experienced workplace investigator provides significant benefits:

When allegations are severe, involve multiple stakeholders, or require specialised legal knowledge, an external investigator ensures the process is conducted rigorously and in full alignment with relevant laws.
If there's a risk of perceived bias, or internal tensions could compromise the investigation, an external expert offers a truly neutral perspective.
Smaller businesses might lack the in-house HR capacity or expertise to conduct a thorough, timely investigation. Outsourcing ensures the process is handled efficiently.
The true cost of a mishandled investigation far outweighs the cost of engaging a qualified external investigator. This is an investment in protecting your workplace, reputation, and bottom line.

If you're unsure whether to initiate an internal investigation, or whether your circumstances warrant external support, seeking expert advice is always wise. Workplace investigation services including Employment Compass offer consultations to help you assess your situation, develop an informed plan of action, and mitigate risks.

Proactive and ethical investigations are your strongest defense against a toxic workplace and the legal and financial consequences that follow. You can contact us on our 24/7 Employer Assist line at 1300 144 002.

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Frequently asked questions

How do I know if a workplace investigation is necessary?

Workplace investigations are warranted when allegations involve serious misconduct, violations of policy, or potential legal breaches. This includes harassment, discrimination, safety incidents, criminal conduct, and ethical breaches. If you're unsure, consulting an HR expert or workplace investigator can guide your decision.

What are workplace rights as an employee involved in a workplace investigation?

Employees have the right to procedural fairness. This means being informed of allegations, given the opportunity to respond, and to have any information treated confidentially. Employees may typically have a support person present during interviews. It's best to consult with an HR team member or workplace law expert to fully understand workplace rights and responsibilities.

What does procedural fairness mean in a workplace investigation?

Procedural fairness ensures that both the complainant and the respondent are treated fairly throughout the process. This includes clear communication on the process, impartiality from the investigator, providing opportunities for both parties to present evidence, and confidentiality where possible.

How can I protect myself from unfair workplace investigations?

Being aware of your rights is crucial. If you feel an investigation is biased or unfair, document your concerns, and seek advice from an HR professional, union representative, or employment lawyer. If necessary, you may be able to lodge a complaint with a regulatory body like the Fair Work Commission.

Should I hire a workplace investigator or can HR handle investigations internally?

This depends on the complexity of the situation. Internal HR may suffice for less serious matters. However, for severe allegations, when impartiality is a concern, or if you lack in-house resources, a qualified external workplace investigator ensures a thorough, unbiased, and legally compliant process.

What kind of workplace investigation training is available for my HR team?

Many providers offer comprehensive training on conducting workplace investigations. This covers legal requirements, procedural fairness principles, interviewing techniques, evidence analysis, and report writing. Consider the reputation of the training provider and tailor the training to your specific needs.

When should I consult a workplace investigation lawyer?

It's wise to seek legal advice if the investigation involves complex legal issues, the risks of litigation are high, or if you're unsure about how to proceed in a way that protects your organisation. An experienced workplace lawyer can help you navigate legal complexities and minimise risk.

I'm in Australia. Are workplace investigations different here?

While core principles of investigations are similar globally, Australia has specific laws and regulatory bodies governing workplace behaviour, such as the Fair Work Act. Be sure to choose a workplace investigator or lawyer with expertise in Australian employment law.