Workplace Investigations for Employers

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:

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.

There are circumstances where an independent external workplace investigator may be preferable to an investigation conducted internally.

An external investigation may be appropriate where:

An independent investigator can provide the employer with an impartial assessment of the evidence and findings upon which management can make subsequent decisions.

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.

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 where that material is adverse to their interests.

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 sometimes have previous involvement in the events under investigation, a relationship with one of the participants or another conflict that makes an independent external investigation preferable.

Engaging an external workplace investigator can assist an employer to demonstrate that serious allegations have been investigated independently and impartially.

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.

However, 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 Briginshaw principle will apply to serious allegations. The standard of proof is still the balance of probabilities but in these circumstances an adverse finding must be supported by stronger or more persuasive evidence. The evidence required to reach reasonable satisfaction is affected by:

1. the seriousness of the allegation;

2. the inherent likelihood or unlikelihood of the alleged conduct;

3. the gravity of the consequences flowing from an adverse finding; and

4. the quality, cogency and reliability of the available evidence.

The Briginshaw case provides that reasonable satisfaction for serious allegations “should not be produced by inexact proofs, indefinite testimony, or indirect inferences” or “by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion.” (Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (30 June 1938))

A typical investigation conducted by Employer Services Legal will involve the following stages.

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.

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.

Depending on the investigation, evidence may include emails, text messages, workplace records, policies, correspondence, electronic material and other documents.

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.

The respondent is then 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.

Where appropriate, further inquiries or witness interviews may be necessary due to the evidence provided by the respondent.

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.

The report provides management with a firm basis upon which it can determine what action, if any, should follow.

A good workplace investigation report should do more than simply state whether an allegation is substantiated.

The report should provide a clear and logical basis for the findings reached which will include the following:

The investigator's role is to make findings of fact. Management can then determine the appropriate response to those findings.

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 specific aspects of an internal workplace investigation, including:

This enables an employer to retain responsibility for the investigation while obtaining legal advice where required.

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.

Employer Services Legal Principal Charles Lentini has extensive experience conducting workplace investigations with a reputation for conducting these in a comprehensive and thorough manner.

This is particularly important where an investigation may lead to disciplinary action or dismissal and potentially result in unfair dismissal, general protections or other employment litigation.

Our approach is to conduct investigations thoroughly, impartially and efficiently so that employers have reliable findings upon which to make informed workplace decisions.