Workplace Investigations: Key Points for Compliance

It’s important to distinguish between investigating a workplace incident and addressing employee misconduct. Investigations focus on uncovering facts – e.g. what happened, where, when, and why—while misconduct processes evaluate whether an employee’s actions breached workplace policies and their awareness of such breaches. 

While both processes are important, they serve different purposes and require distinct approaches.

Common Triggers for Workplace Investigations

Investigations may arise from a variety of situations, including:

• Risks to health and safety
• Policy breaches
• Bullying or harassment
• Discrimination
• Theft, fraud, or misuse of company resources
• Disruptive behaviour or intoxication at work

Regardless of the nature, investigations must adhere to principles of natural justice, ensuring that allegations remain unproven until thoroughly examined. The purpose of an investigation is to determine the facts and ensure the respondent’s right to be heard and respond to allegations. Allegations remain just that until proven or disproven.

Key Principles for a Fair Investigation

To maintain compliance and fairness, consider these core principles during an investigation:

1. Maintain Neutrality: Avoid conflicts of interest by appointing an impartial investigator. This person should have no personal or professional connection to the case participants.
2. Clear Communication: Inform all parties about the investigation process, including its purpose, scope, and timelines. Transparency builds trust and minimises unnecessary stress.
3. Respect and Empathy: Treat everyone involved—complainants, witnesses, and respondents—with professionalism and care. If health and safety risks are evident, or allegations are serious, a temporary standdown may be required, ideally following professional advice.
4. Avoid Preconceptions: Do not assume guilt or innocence. Focus solely on gathering facts.

Comprehensive Documentation: Maintain detailed records, including witness statements, CCTV footage, emails, and other relevant evidence. Ensure sensitive information is handled in line with privacy laws.

Managing Challenges in Investigations

1. Investigating Senior Management: Investigating senior management can be challenging. Engaging external investigators or advisors can mitigate bias and ensure a transparent process.
2. Privilege and Confidentiality: For an investigation to be covered by privilege, it needs to be for the purpose of obtaining legal advice and kept confidential. In these circumstances, an external legal advisor or independent investigator is engaged. 
3. Notifications to Authorities: Depending on the case, you may need to notify third parties such as the police or regulatory authorities. Seek specialist advice before taking this step.
4. Addressing Delays: Investigations should be conducted without unreasonable delay to avoid legal risks and maintain confidence in the process. The complainant should be kept up to date on the progress of the investigation.

When meeting with the complainant and other witnesses, be clear about what will happen with their interview notes and reassure them that the information will be treated sensitively. The employee under investigation should be treated fairly and consistently, following a fair and reasonable process. The employee under investigation should cooperate with the investigation, providing documents, answering questions and attending meetings.

During the investigation meeting, it is important that the investigator:

• remains neutral and objective, focusing on understanding the facts;
• confirm the meeting is for investigation purposes and not disciplinary;
• take detailed notes and ask questions to establish the facts; and 
• consider whether to ask open or closed questions (it is suggested open questions to being and then moving to closed questions as needed).

By following these principles, you can ensure a fair and thorough workplace investigation that respects the rights of all involved and maintains the integrity of the process.

Closing the Investigation