Complaint matters
Workplace investigations are commonly required after an employee makes a complaint or where management becomes aware of alleged inappropriate conduct.
Workplace investigations may involve complaints of:
- Misconduct or serious misconduct.
- Bullying, sexual harassment or discrimination.
- Inappropriate workplace behaviour or breaches of workplace policies.
- Dishonesty or conflicts of interest.
- Misuse of confidential information.
- Failure to comply with lawful and reasonable directions.
- Inappropriate use of workplace systems or resources.
- Other conduct that may constitute inappropriate behaviour.
Not every complaint requires a formal workplace investigation. We can advise employers about whether an investigation is appropriate and the process that should be followed.
Why use an external workplace investigator?
There are circumstances where an independent external workplace investigator may be preferable to an investigation conducted internally.
An external investigation may be appropriate where:
- Serious complaints have been made.
- The complaint concerns a senior employee or manager.
- Allegations involve members of the organisation’s HR or management team.
- There is a potential conflict of interest.
- The matter is particularly sensitive.
- The employer lacks an appropriately experienced internal investigator.
- The independence of an internal investigation may subsequently be challenged.
An independent investigator can provide the employer with an impartial assessment of the evidence and findings upon which management can make subsequent decisions.
Our workplace investigation process
A typical investigation conducted by Employer Services Legal will involve the following stages.
01Initial assessment and complainant interview
We review the complaint and relevant background material and then interview the complainant. This assists to identify the alleged inappropriate conduct, relevant dates and events, potential witnesses and supporting documents.
The information obtained at this stage enables the matters requiring investigation to be clearly identified.
02Witness interviews and documentary evidence
Relevant witnesses will then be interviewed and documents or other evidence collected. Evidence may support, contradict or provide additional context to the complaint matters.
The investigator’s role is not to build a case for either party. Relevant evidence should be approached impartially. Evidence may include emails, text messages, workplace records, policies, correspondence and other documents.
03Preparation of allegations
The allegations to be put to the respondent should be drafted clearly and with sufficient particulars to enable the respondent to understand the alleged conduct.
Depending upon the circumstances, relevant documentary or other evidence may also need to be disclosed. Properly framing allegations is an important part of providing procedural fairness.
04Respondent interview and opportunity to respond
The respondent is provided with the allegations and given an appropriate opportunity to prepare a response. An interview will ordinarily be conducted so that the respondent can respond to each allegation and provide any relevant evidence.
Further inquiries or witness interviews may be necessary due to the evidence provided by the respondent.
05Assessment of evidence and investigation report
Once the evidence has been collected, it is assessed and findings are made in relation to each allegation.
A written workplace investigation report is then provided to the employer setting out the investigation process, relevant evidence and findings. Management can use the report to determine what action, if any, should follow.
Investigation reports and findings
A good workplace investigation report should do more than simply state whether an allegation is substantiated. It should provide a clear and logical basis for the findings reached, including:
- The investigation process and applicable standard of proof.
- The allegations investigated and witnesses interviewed.
- Documentary and other evidence considered.
- Relevant factual disputes and credibility issues where necessary.
- Analysis of the evidence.
- Findings in relation to each allegation.
Management can then make a decision in response to those findings.
A considered investigation process
Explore the principles that form the basis of our work and the support available to employers managing investigations internally.
Procedural fairness in workplace investigations
It is not enough to simply conduct a workplace investigation. The investigation process should also afford procedural fairness. Two important elements are the hearing rule and the bias rule.
The hearing rule
A person whose interests may be adversely affected by a decision should be given an adequate opportunity to be heard before the decision is made.
In a workplace investigation, this will ordinarily require the respondent to be given sufficient particulars regarding the allegations so they understand the case against them and have a reasonable opportunity to respond. It may also require relevant adverse material to be put to the respondent.
The bias rule
The investigator should approach the investigation impartially and without having prejudged the outcome. This includes both actual bias and circumstances that may give rise to a reasonable apprehension of bias.
An internal investigator may have previous involvement in the events, a relationship with a participant or another conflict that makes an independent external investigation preferable.
The standard of proof for workplace investigations
Findings in workplace investigations are made on the balance of probabilities. This requires the investigator to determine whether, based on the available evidence, it is more probable than not that the alleged conduct occurred.
The seriousness of an allegation is relevant to the strength and quality of evidence required before the investigator can be reasonably satisfied that the allegation has been established. This is commonly associated with the principles raised by the High Court in Briginshaw v Briginshaw.
The standard of proof remains the balance of probabilities but for serious allegations an adverse finding must be supported by stronger or more persuasive evidence. The evidence required to reach reasonable satisfaction is affected by:
- The seriousness of the allegation.
- The inherent likelihood or unlikelihood of the alleged conduct.
- The gravity of the consequences flowing from an adverse finding.
- The quality, cogency and reliability of the available evidence.
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.
Advice for employers conducting internal investigations
Employers with experienced internal HR or workplace relations personnel may prefer to conduct an investigation themselves but require legal advice at particular stages.
Employer Services Legal can assist with the investigation process, terms of reference, framing allegations, procedural fairness, confidentiality, witness issues, assessing evidence, the standard of proof, findings and investigation reports.
This enables an employer to retain responsibility for the investigation while obtaining legal advice where required.
Legal professional privilege and workplace investigations
Engaging a lawyer to conduct a workplace investigation does not necessarily mean that the investigation or resulting report will be protected by legal professional privilege.
Whether privilege applies will depend upon the circumstances and the purpose for which the investigation and relevant communications were created.
Where an employer wishes to obtain legal advice in connection with an investigation, the purpose and structure of the engagement should be considered before the investigation commences. We can advise employers on these issues at the outset.
Scope, timing and fees
Each workplace investigation is different. The scope of the allegations, number of participants and volume of evidence will influence the work required.
Contact us to discuss the complaint, any relevant timeframes and the assistance your organisation needs. We can then discuss the proposed scope, timing and fee arrangements before work begins.