Workplace Investigations in Victoria: Common Mistakes Employers Make

The short answer

The mistakes that cause Victorian employers real damage are structural. They cluster at the start of a matter — how the information was triaged, what the investigator was asked to do, who was appointed, how the allegations were framed — and at the end, in findings and report handling that cannot be defended by reference to the evidence actually gathered.

This article is organised as fifteen mistakes. For each one it identifies the error, why it creates legal or evidentiary risk, and the corrective control. It is deliberately not another end-to-end procedure: for the full sequence of an investigation see workplace investigations in Victoria, and for the detailed law on allegations, bias, adverse material and findings see procedural fairness in workplace investigations. This is general information only and not legal advice.

Mistakes 1 and 2: no real triage, and no terms of reference

Mistake 1 — treating every complaint the same way. Two opposite errors appear in practice: sitting on credible information in the hope it resolves itself, and launching a formal investigation into every grumble because the policy says "investigate". Both are failures of triage.

Why it creates risk. Inaction leaves a known hazard uncontrolled and undermines any later assertion that the employer took reasonably practicable steps. Reflexive formality escalates matters ordinary management action could resolve and spends the credibility of the mechanism the organisation will need for the serious matter later.

The control. Triage promptly, proportionately and in writing: what was reported, when, by whom, the risk assessed, the duties potentially engaged and the response chosen. That response may be a formal investigation, preliminary fact-finding, immediate safety controls, facilitated resolution, ordinary management action, a referral to a regulator or integrity body, or several of these in sequence. Facilitated or restorative approaches are not suitable for every interpersonal, harassment, discrimination or safety complaint, and are poor choices where there is a power imbalance, a safety risk or conduct capable of warranting discipline. Triage should be decided by someone with authority and no personal stake in the events; complete independence is not the test, and is often unavailable.

Mistake 2 — an investigation with no defined purpose or scope. An investigator is asked to "look into the culture of the team" or "get to the bottom of it".

Why it creates risk. Scope creep produces findings nobody commissioned, on conduct never put to the person concerned, in a report that cannot be used. It also extends timeframes and complicates any privilege position.

The control. Written terms of reference that identify the allegations or issues to be examined, what is expressly out of scope, whether the investigator is to make findings of fact only or also assess whether established conduct breached identified policies, the standard of proof, the treatment of documents and interview records, confidentiality and privilege arrangements, the reporting line, the expected timeframe and the process for varying scope. If new allegations emerge, vary the terms of reference in writing rather than absorbing them silently.

Mistake 3: the wrong investigator — including an external one

The mistake. Appointing the respondent's reporting manager, a board colleague, the HR business partner who has already counselled the complainant, or a person without the skill to test contested evidence. The mirror-image error is assuming that engaging an external consultant or law firm makes the process independent.

Why it creates risk. Actual or apprehended partiality gives findings a short life, and invites argument that the outcome was predetermined. External appointment does not answer the question by itself: objectivity depends on prior involvement, commercial relationships, who instructs and pays, the scope permitted and whether the investigator is free to reach a conclusion adverse to the person who engaged them. Nor is a lawyer automatically a skilled investigator, or the engagement automatically privileged.

The control. Choose the investigator against the matter: seriousness and complexity, the seniority of those involved, internal capability, actual or apprehended bias, obligations in contracts, awards or enterprise agreements, litigation risk, and the privilege strategy. Internal investigation is appropriate for many matters. Whoever is appointed, document a conflicts check, require prompt disclosure of anything arising later, and keep the investigator separate from the disciplinary decision-maker — strong governance practice rather than an inflexible rule, and where a small organisation cannot achieve it, record the reasoning.

Mistakes 4 and 5: vague allegations and a decision already made

Mistake 4 — allegations that cannot be answered. "You have bullied your team", "your conduct towards staff has been inappropriate", or a compound allegation bundling six incidents across two years into one paragraph. Conclusion-based allegations state the legal characterisation rather than the conduct.

Why it creates risk. A person cannot meaningfully answer an allegation that does not identify what they are said to have done, when, to whom and in what circumstances. The response is thin, the finding rests on the investigator's characterisation rather than on conduct, and the notification and opportunity-to-respond elements of any later assessment become hard to satisfy. Compound allegations produce compound findings that cannot be sensibly applied to a disciplinary decision.

The control. Particularise. One allegation per incident or course of conduct, in ordinary language, with dates, places, participants and the conduct alleged, and a separate statement of which policy or standard is said to be engaged. Provide the material the person needs to respond, subject to safety, confidentiality and any statutory protection, and allow a reasonable time to respond rather than an afternoon.

Mistake 5 — predetermination and confirmation bias. The disciplinary letter is drafted before the response arrives; the investigator interviews the witnesses who support the complaint and treats the rest as peripheral; inconsistencies in the complainant's account are not tested, while every inconsistency in the respondent's account is.

Why it creates risk. Predetermination is usually visible in the documents — the calendar entry, the draft letter, the email describing the outcome as settled — and once visible it colours the assessment of the whole process. Confirmation bias also degrades the accuracy of the fact finding itself, which is the more expensive problem.

The control. Formulate lines of inquiry rather than a theory, identify and pursue the evidence that would disprove the allegation, put materially conflicting or adverse information to the person it affects where fairness and reliable fact-finding require it, and keep working papers that show the questions asked of both accounts. Where fairness requires adverse material to be put, do so in a form that protects safety and any protected identity — the substance can usually be conveyed without the source.

Mistake 6: evidence that was never preserved or tested

The mistake. Beginning with interviews and turning to documents later, by which time rosters have been overwritten, CCTV has cycled, messaging apps have expired, mailboxes have been deleted with a departing employee and system logs have rolled over. A related error is accepting documents at face value: a screenshot with no metadata, an edited chat export, a file note written months after the event and presented as contemporaneous.

Why it creates risk. Investigations turn on the reliability of the record. Lost material cannot be recovered later for a Commission hearing, and a party who asserts that the missing evidence would have helped them is in a strong rhetorical position. Untested documents produce findings that unravel under cross-examination.

The control. Issue a preservation instruction at triage covering email, files, messaging platforms, access logs, rosters, CCTV, payroll and expense systems, and suspend automated deletion for the relevant custodians and period. Record how each document was obtained and by whom, keep originals and metadata, note the limits of what was collected, and test documents against independent sources before relying on them.

Mistake 7: recording, surveillance and privacy errors

The mistake. Assuming that recording an interview is fine so long as consent is obtained, or that anything on the employer's systems can be reviewed without further thought, or that the Privacy Act employee-records exemption removes privacy considerations from the investigation altogether.

Why it creates risk. In Victoria the legality of a recording depends on who is recording, the type of device and conversation, the Surveillance Devices Act 1999 (Vic), applicable workplace policies and directions, and the proposed use or communication of the recording. Even where a particular act of recording is not prohibited, covert recording by an employer, an employee or a support person can significantly damage trust, contaminate the process and complicate the disciplinary decision that follows. On the privacy side, the employee-records exemption under the Privacy Act 1988 (Cth) is limited: it is directed at acts and practices directly related to a current or former employment relationship and an employee record of that individual, and it does not neatly cover applicants, contractors, non-employee witnesses, information held by an external investigator in its own right, information not directly related to the employment relationship, or all health information. Surveillance and health-records obligations may apply separately.

The control. Adopt a written recording protocol: whether recording will occur, on what device, who holds the file, the purpose, storage, retention and how participants are informed. Prefer informed agreement and a careful contemporaneous note over covert capture. Before reviewing surveillance, device or system material, confirm the lawful basis and the applicable policy, and take advice rather than proceeding on an absolute rule.

Mistake 8: blanket confidentiality, anonymity and protected disclosures

The mistake. Directing participants to tell no one anything, on pain of discipline; or the opposite, treating an anonymous complaint or a whistleblower disclosure as an ordinary HR file and circulating identifying detail to managers who need to "understand the context".

Why it creates risk. A direction is only enforceable if it is lawful and reasonable, and an excessively broad or blanket direction may be unlawful or unreasonable depending on its terms, purpose, duration, the surrounding circumstances and whether it still permits legitimate disclosures: participants may need to obtain legal or union advice, engage a support person, consult a treating practitioner, make a protected disclosure or notify a regulator, and the respondent must be able to discuss the allegations in order to answer them. Overreaching directions also become their own dispute, and may be adverse action if imposed because someone exercised a workplace right. At the other extreme, mishandled identities expose the employer to victimisation and confidentiality breaches under regimes with real consequences: an eligible disclosure about a regulated entity may engage Part 9.4AAA of the Corporations Act 2001 (Cth), and Victorian public sector or public body matters may engage the Public Interest Disclosures Act 2012 (Vic) and integrity-agency processes.

The control. Give tailored, written confidentiality expectations on a need-to-know basis, with the legitimate exceptions stated. Assess at intake whether a report may be a protected disclosure, and if it may be, apply that regime's confidentiality and anti-victimisation requirements rather than the general protocol — do not disclose identity or identifying information without confirming the legal basis. Anonymous allegations can be investigated, but an untested anonymous assertion is rarely a safe foundation for an adverse finding.

Mistake 9: interim measures that punish or endanger

The mistake. Automatic suspension whenever an allegation is serious; or interim arrangements imposed on the complainant — a shift change, a transfer, removal from a project — because that is administratively easier. A further error is the categorical rule: complainant and respondent must always be separated, and confidentiality is always paramount.

Why it creates risk. Interim measures are easily read as a finding, or as retaliation. Measures that disadvantage the person who complained carry general-protections and victimisation risk and discourage future reporting. Suspension raises separate questions of authority, pay, reasonableness, duration and psychological impact, all depending on the applicable instruments and facts. A blanket separation rule can itself cause harm, for example where it isolates a complainant or effectively demotes them.

The control. Assess interim measures individually and record the reasoning: the risk being managed, the options considered, why the measure is proportionate and non-punitive, its expected duration and the review date. Consider trauma-informed practice where appropriate to the person and the matter, without treating it or automatic separation as a universal statutory requirement. Avoid measures that disadvantage a complainant, keep them under review, and treat suspension as a considered step with its own written basis. The detailed law on authority, pay, duration and implementation is in our guide to suspension pending investigation in Victoria.

Mistake 10: interviews that do not test anything

The mistake. Reading the allegations aloud and recording agreement or denial; interviewing witnesses together; promising absolute confidentiality to secure cooperation; accepting an account without exploring how the witness knows what they say; or substituting the investigator's summary for the witness's own words.

Why it creates risk. Relying on an account without appropriate testing, corroboration where it is available and credibility analysis can make a serious finding unsafe or difficult to defend, and a promise of absolute confidentiality cannot be kept once fairness requires adverse material to be put to the person it affects. Group interviews contaminate recollection, and records that paraphrase away the witness's language lose the detail that determines credibility.

The control. Interview separately, explain the purpose, the limits of confidentiality and the prohibition on retaliation, then use open questions before probing specifics — sequence, source of knowledge, contemporaneous documents, who else was present. Test inconsistencies in both accounts. Preserve the witness's own words and document follow-up inquiries. Verify the record by a method suited to the matter: reading the note back, sending a draft for correction or taking a signed statement are options rather than universal requirements, and the method chosen should be recorded. Offer a support person as prudent practice and where a policy or industrial instrument requires it, noting that s 387(d) of the Fair Work Act concerns unreasonable refusal of a support person the employee requested to assist in discussions relating to dismissal, not a general duty to provide one at every witness interview. Credibility analysis should rest on consistency, corroboration, inherent plausibility and the reliability of the source, not demeanour or seniority.

Mistake 11: misreading the standard of proof

The mistake. Reports that describe a "criminal standard" or a "Briginshaw standard" for serious allegations, or that treat the phrase as a ritual formula; and, conversely, reports that make grave findings on inexact and indirect material because "on balance" it seemed more likely than not.

Why it creates risk. Both errors are visible in the reasoning. An inflated standard produces a not-substantiated outcome that leaves a real hazard uncontrolled; a thin one produces findings that collapse when the evidence is examined, taking the disciplinary decision with them.

The control. The civil standard is the balance of probabilities, and Briginshaw v Briginshaw (1938) 60 CLR 336 does not create a third, higher or sliding standard. It informs how reasonable satisfaction is reached: where the allegation is serious and the consequences of an adverse finding grave, a decision-maker should not act on inexact proofs or indirect inferences, and should be actually persuaded by evidence of sufficient clarity and cogency. Write findings that show why the material persuaded the investigator, allegation by allegation, and be willing to record that an allegation is not established on the available evidence — which is a finding, not a failure.

Mistake 12: confusing findings, remit and the disciplinary decision

The mistake. An investigator who recommends dismissal, or an employer that treats the report as the decision and issues a termination letter that simply adopts it. A different version is the report that asserts conclusions without setting out the evidence and reasoning behind them.

Why it creates risk. A conclusion unsupported by identified evidence and reasoning cannot be defended by the decision-maker who relies on it, or sensibly tested by the employee. Where the investigator has effectively decided the outcome, the employee's response has no work to do, and the employer struggles to show it considered mitigation, the employee's record or consistency of treatment. Conclusions expressed as legal findings — that conduct constitutes serious misconduct, or contravenes a statute — are also frequently outside the investigator's remit and expertise.

The control. Distinguish four things and keep them separate: findings of fact; findings about whether established conduct breached a specified policy or standard; legal advice or legal conclusions; and the disciplinary outcome. The investigator's remit is whatever the terms of reference confer, and it can properly extend to policy findings; legal conclusions should be sought only where they are within scope and supported by appropriate legal expertise. The employment decision belongs to the authorised decision-maker, who should consider the report, the employee's response to the findings, mitigation, length and quality of service, consistency with how comparable matters were treated, and the applicable contractual, industrial and statutory framework — and should record reasons for the decision actually made. On the substantive framework for dismissal, including reg 1.07 of the Fair Work Regulations 2009 (Cth) and its context-dependent examples, see our guide to serious misconduct and termination. Alleging serious misconduct does not establish a valid reason or authorise summary dismissal.

Mistake 13: treating the investigation as the whole response

The mistake. The report is delivered, an outcome is issued, the file closes — and the work design, supervision gap, unmanaged workload, tolerated behaviour or absent reporting pathway that produced the complaint is untouched. Employers sometimes also describe the investigation itself as discharging the positive duty.

Why it creates risk. Victoria is not a harmonised work health and safety jurisdiction; the applicable regime is occupational health and safety law. Under the Occupational Health and Safety Act 2004 (Vic) and the Occupational Health and Safety (Psychological Health) Regulations 2025 (Vic), in force from 1 December 2025, employers have duties to identify psychosocial hazards, eliminate the associated risks so far as is reasonably practicable and otherwise reduce them so far as is reasonably practicable, and to review and revise controls in prescribed circumstances. An investigation is a responsive process. It does not substitute for prevention, risk controls, consultation with employees and health and safety representatives, or systemic remediation. Separately, s 47C of the Sex Discrimination Act 1984 (Cth) requires employers and persons conducting a business or undertaking to take reasonable and proportionate measures to eliminate, as far as possible, the conduct it specifies — including sex discrimination in a work context, sexual harassment and harassment on the ground of sex in connection with work, conduct creating a hostile workplace environment on the ground of sex, and related victimisation. Section 15 of the Equal Opportunity Act 2010 (Vic) imposes a separately framed Victorian duty to take reasonable and proportionate measures to eliminate discrimination, sexual harassment and victimisation as far as possible. The two formulations are not identical and should not be merged. Responding to one complaint may form part of compliance; it does not by itself discharge a preventative duty.

The control. Separate the individual matter from the systemic one at the outset, and give the systemic issue an owner, an action and a review date. Feed themes from complaints, exit interviews and absence data into the hazard register and consult on controls. Detail on the Victorian psychological-health regime is in our employer guide to psychosocial hazards in Victorian workplaces, and WorkSafe Victoria publishes current guidance on the 2025 regulations.

Mistake 14: assuming privilege, then circulating the report

The mistake. Engaging a law firm, marking everything "privileged and confidential", and then emailing the report to the leadership team, summarising its conclusions in a staff communication and attaching it to a board pack.

Why it creates risk. Engaging a lawyer does not by itself make an investigation, its interviews, working papers or report privileged, and a label does not create privilege. Legal professional privilege turns principally on the dominant purpose for which the communication or document was brought into existence, assessed at the relevant time — the approach confirmed in Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49. Investigations commissioned for mixed fact-finding, human resources, operational and legal-advice purposes are often difficult to protect, and broad circulation, public reliance on the conclusions or selective disclosure may waive whatever privilege existed.

The control. Decide the privilege strategy before commissioning the investigation, not after the report lands. Where a privileged process is genuinely intended, ensure the engagement terms, instructions, reporting lines and document handling reflect that true purpose, keep legal advice distinct from operational fact-finding, and control circulation to a defined list. Where privilege is not the priority — often a legitimate choice — plan on the basis that the report may be produced. Take advice before disclosing a privileged report to a regulator, insurer or wider audience.

Mistake 15: delay, silence and thin records

The mistake. An investigation that drifts for months with no explanation; allegations that change shape between the letter and the interview; participants who hear nothing for weeks; a suspension that continues because nobody revisited it; and a file that consists of a report with no underlying notes, correspondence or decision records.

Why it creates risk. Delay degrades the evidence — memories fade, digital records are overwritten, witnesses leave — and makes prolonged interim measures harder to justify. Silence generates process complaints, escalation to regulators and sometimes its own psychological harm. Shifting allegations undermine any assertion that the person knew what they had to answer, and a thin file leaves the employer unable to demonstrate what it did, when and why.

The control. Set a documented, reasonable timetable at the start, calibrated to complexity, witness and document availability, safety and any applicable instrument; review it at intervals and record the reason for any extension. Update participants on progress and on any material change to scope, allegations or timing, within the limits of confidentiality and any protective obligation. Put changed allegations in writing and allow a fresh opportunity to respond. Keep the full record: triage note, terms of reference, correspondence, interview notes, document register, preservation instruction, interim-measure reviews, the report, the employee's response and the decision-maker's reasons.

What the Fair Work Commission actually decides

Employers frequently assume that a defective investigation decides an unfair dismissal case. It does not. In an application under Part 3-2 of the Fair Work Act 2009 (Cth), the Commission determines on the evidence before it whether there was a valid reason for the dismissal relating to the employee's capacity or conduct. Conduct may be established in the Commission even though the employer's own process was poor, and a flawed investigation does not automatically establish that no valid reason existed.

Process nonetheless matters, because s 387 requires the Commission to take into account whether the employee was notified of the reason for dismissal (s 387(b)), whether the employee was given an opportunity to respond to any reason related to capacity or conduct (s 387(c)), and any unreasonable refusal by the employer to allow a support person the employee requested to assist in discussions relating to dismissal (s 387(d)) — which is not a general obligation to offer a support person. Those matters, with the size of the enterprise, the presence or absence of dedicated human resources expertise and any other relevant matters, form the overall assessment of whether the dismissal was harsh, unjust or unreasonable. A dismissal supported by a valid reason can still be unfair because of how it was reached. For small-business employers, compliance with the Small Business Fair Dismissal Code is a distinct framework that should be considered on its own terms rather than folded into s 387.

Remedies are governed by the statute: reinstatement is the primary remedy where the Commission considers it appropriate, and compensation may be ordered where reinstatement is inappropriate, calculated on the statutory criteria and subject to the cap in the Act. Investigations touching a workplace right may also give rise to a general protections claim. There, s 361 provides a presumption as to the reason for conduct, but it operates only once the applicant establishes the necessary elements — including the adverse action — and alleges a prohibited reason; the employer then bears the onus of proving the action was not taken for that reason. Our guide to general protections and adverse action and to unfair dismissal claims deal with those jurisdictions in detail. Bullying allegations may separately attract an application under s 789FF, applying the definition in s 789FD including the exclusion of reasonable management action carried out in a reasonable manner.

Quality-control checklist before you commission

Most of the damage described above is preventable in the first week. Before an investigation starts, an employer should be able to answer each of the following in writing:

1. What was reported, when, by whom, and what risk did we assess?
2. Why is a formal investigation the proportionate response, and what alternatives did we consider?
3. Are immediate safety controls required, independent of the investigation?
4. What are the terms of reference — allegations, exclusions, remit as to policy findings, timeframe, reporting line?
5. Who is the investigator, what conflicts check was done, and why are they suitable for this matter?
6. Who will make the disciplinary decision, and are they separate from the investigator?
7. Has a preservation instruction issued, and is automated deletion suspended?
8. Might this be a protected disclosure, and if so which regime applies?
9. Are interim measures necessary, proportionate, non-punitive and dated for review?
10. What confidentiality expectations apply, and which exceptions are stated?
11. What is the recording, privacy and information-handling protocol?
12. Is a privileged process intended, and is the engagement structured accordingly?
13. How will participants be kept informed, and on what timetable?
14. Who owns the systemic issue, separately from the individual matter?
15. Where will the complete record be kept, and who has access?

Parke Lawyers advises Victorian employers, boards and HR decision-makers on these decisions, and acts for employers in the proceedings that follow when a process has gone wrong. See our employment law for employers and commercial and business law services.