Workplace Investigations in Victoria: Common Mistakes Employers Make

When a Workplace Investigation Should Be Commenced

A workplace investigation should be considered whenever credible information suggests conduct that, if proven, could:

• justify disciplinary action or termination;
• breach a workplace policy, code of conduct or contractual obligation;
• indicate conduct covered by the positive-duty regimes in section 47C of the Sex Discrimination Act 1984 (Cth) and section 15 of the Equal Opportunity Act 2010 (Vic), or reveal a need to review reasonable and proportionate preventative measures;
• breach work health and safety duties under the Occupational Health and Safety Act 2004 (Vic);
• constitute bullying under section 789FD of the Fair Work Act 2009 (Cth);
• create exposure under the workers compensation regime, or give rise to a common-law claim, depending on the facts; or
• attract regulator interest from the Fair Work Ombudsman, the Victorian Equal Opportunity and Human Rights Commission, the Australian Human Rights Commission or WorkSafe Victoria.

The trigger does not have to be a formal complaint. It can be an anonymous report, an exit-interview disclosure, an allegation made to a manager in passing, information from a client, information from another worker or a regulator notification. Once an employer is on notice of credible information, the question is not whether to respond — it is how.

Complaints From Employees

Complaints should be received in a way that takes them seriously, preserves dignity, protects confidentiality and creates a clear record. Best practice includes a written complaints policy that identifies how complaints can be made, who they can be made to, what will happen next, the commitment to confidentiality, the prohibition on victimisation and the support available to the complainant. A complaint should be acknowledged in writing, the response timetable communicated, and the initial triage decision (full investigation, mediation, management response, no further action) made and documented by someone independent of the events complained about.

Bullying Allegations

Bullying is defined under section 789FD of the Fair Work Act 2009 (Cth) as repeated unreasonable behaviour by an individual or group towards a worker that creates a risk to health and safety. Reasonable management action carried out in a reasonable manner is expressly excluded. Performance management, robust feedback and lawful direction may fall outside the statutory definition of bullying only where that test is met on the facts; they are not categorically excluded. Investigators must distinguish reasonable management action carried out in a reasonable manner from a pattern of unreasonable behaviour, engaging with the conduct over time, its impact, the context and whether the statutory exclusion is genuinely satisfied. The Fair Work Commission can make stop-bullying orders under section 789FF, and the way a complaint is handled may affect risk of a stop-bullying application, a workers-compensation claim or a common-law claim depending on the facts.

Sexual Harassment and Other Harassment Allegations

Sexual harassment is prohibited under the Sex Discrimination Act 1984 (Cth) and the Equal Opportunity Act 2010 (Vic). Since the Respect@Work reforms, employers owe a positive duty to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment, sex-based harassment, conduct that subjects a person to a hostile workplace environment on the ground of sex, and victimisation. The Australian Human Rights Commission has compliance and enforcement powers in relation to the positive duty. Investigations of sexual harassment should be trauma-informed, conducted by a trained investigator, keep the complainant and respondent properly separated, offer ongoing support and treat confidentiality as paramount. Other forms of harassment — racial, religious, disability, age — engage their own statutory regimes and require equivalent rigor.

Discrimination Complaints

Discrimination complaints engage the Equal Opportunity Act 2010 (Vic), the Sex Discrimination Act 1984 (Cth), the Racial Discrimination Act 1975 (Cth), the Age Discrimination Act 2004 (Cth) and the Disability Discrimination Act 1992 (Cth), as well as the general-protections regime in Part 3-1 of the Fair Work Act. An investigator must understand the legal definitions of direct discrimination, indirect discrimination, victimisation and the relevant exceptions. The evidence relevant to a discrimination claim varies by cause of action: material typically includes evidence about treatment, causation, disadvantage, reasonableness and any statutory exceptions or defences, and comparator evidence is relevant to some claims but is not universally central or required. A common mistake is to treat a discrimination complaint as a personality clash and respond with team-building interventions, when the complaint is in substance a legal allegation with significant employer and personal exposure for the alleged discriminator.

Serious Misconduct Allegations

Serious misconduct is defined in regulation 1.07 of the Fair Work Regulations 2009 (Cth) and includes wilful or deliberate behaviour inconsistent with the continuation of the employment; conduct causing serious and imminent risk to health and safety or to the reputation, viability or profitability of the business; theft, fraud or assault; being intoxicated at work; and refusing to carry out a lawful and reasonable instruction consistent with the employment contract. An allegation of serious misconduct does not itself establish a valid reason or predetermine the outcome — the employer must still establish a valid reason and afford procedural fairness. Where an unfair-dismissal application is made, the Fair Work Commission assesses the dismissal against the section 387 criteria (including notice of the reason, opportunity to respond and any unreasonable refusal of a support person requested for discussions relating to dismissal) in deciding whether it was harsh, unjust or unreasonable. If the dismissal is found unfair and jurisdictional prerequisites are met, the Commission may order reinstatement; ancillary orders can preserve continuity of employment and restore lost remuneration. If reinstatement is inappropriate, the Commission may order compensation subject to the statutory cap. The investigation must therefore be rigorous, the allegations particularised in writing, the respondent given a real opportunity to respond, mitigating circumstances considered and the decision documented. For an overview of the substantive law, see our companion article on serious misconduct and termination.

Theft and Dishonesty Investigations

Investigations into theft, fraud, false expense claims, secret commissions, payroll manipulation, IP theft and similar dishonesty typically rely on documentary evidence — CCTV, system logs, financial records, swipe-card data, key-card audit trails, email forensics and customer or supplier statements. Care must be taken to preserve evidence, check whether the Privacy Act 1988 (Cth) applies (including the employee-records exemption), comply with the Surveillance Devices Act 1999 (Vic), any applicable workplace instruments and other applicable privacy and confidentiality duties, avoid accusations before the evidence is reviewed, manage IT and finance access during the investigation and decide deliberately — with advice — whether to refer the matter to Victoria Police. Parallel criminal and disciplinary processes raise their own tactical and procedural issues that should not be navigated without legal advice.

Witness Interviews

Witnesses should be interviewed separately, in private, by a trained investigator who is independent of the events. Best practice includes:

• telling the witness the purpose of the interview, the confidentiality expectations and the prohibition on retaliation;
• permitting, and where appropriate offering, a support person, subject to any applicable award, enterprise agreement or policy (and clarifying their non-advocate role);
• asking open, non-leading questions;
• taking comprehensive notes, reading them back to the witness, and asking the witness to confirm and sign;
• avoiding any indication of the investigator's preliminary view;
• considering whether recording the interview is appropriate, and obtaining consent where it is; and
• keeping witness identity confidential to the extent consistent with procedural fairness for the respondent.

Joint interviews, ambush interviews, interviews conducted by the respondent's reporting manager, and interviews that do not produce a contemporaneous written record are all common sources of evidentiary weakness when the matter is later challenged.

Confidentiality

Confidentiality protects the integrity of the investigation, the dignity of the complainant and respondent, the willingness of witnesses to come forward, and the legal interests of the business. Any confidentiality direction must be lawful and reasonable. Disclosure should be limited to those with a genuine need to know, and legitimate exceptions include obtaining legal or union advice, engaging a support person, consulting a treating practitioner, making a protected disclosure or notifying a regulator, complying with WHS reporting obligations and doing what procedural fairness requires. Confidentiality is not absolute — the respondent must be told the substance of the allegations in order to respond — and the aim is a tailored, need-to-know approach rather than blanket secrecy.

Procedural Fairness and Natural Justice

Procedural fairness and natural justice are terms often used interchangeably in the employment context to describe core features of a fair process — notice of the substance of the allegations in clear terms, a real opportunity to respond before any adverse finding is made, and consideration by an impartial decision-maker. The source of the obligation and the consequences of a breach differ, however: an unfair-dismissal application under Part 3-2 of the Fair Work Act 2009 (Cth) turns on the s 387 criteria (including notice of reason, opportunity to respond and any unreasonable refusal of a support person requested to assist in discussions relating to dismissal); other consequences may flow from contract, industrial instruments, incorporated policies, statutes or, in the public-sector context, administrative-law principles. Where a dismissal is found unfair and jurisdictional prerequisites are met, the Commission may order reinstatement or, where reinstatement is inappropriate, compensation subject to the statutory cap. For a deeper treatment of these principles see our article on procedural fairness in workplace investigations.

Investigation Reports

A workplace investigation report should set out:

• the terms of reference and scope;
• the methodology, including documents reviewed and witnesses interviewed;
• each allegation expressed in clear, particularised factual terms;
• the evidence relevant to each allegation;
• the respondent's response;
• the investigator's findings on the balance of probabilities — noting that serious findings should rest on evidence sufficiently clear and cogent to produce reasonable satisfaction in the circumstances (consistent with Briginshaw v Briginshaw, which does not create a separate or sliding standard of proof); and
• the reasoning that supports each finding (not merely the conclusion).

The investigator should ordinarily make findings of fact only. The decision about disciplinary outcome — warning, performance management, training, demotion, termination with notice, summary termination — belongs to the employer, exercised separately and with its own decision record. A conclusory report that substitutes allegation for finding, or that pre-empts the disciplinary decision, is materially worse than no report at all.

Suspension During an Investigation

Suspension is a serious step. It is not automatically justified by the making of a complaint. Suspension should be considered where the allegations are serious, where continued presence in the workplace risks further harm, evidence tampering or witness interference, or where the duties of the role are inconsistent with the nature of the allegations (a finance role and an allegation of theft, for example). Any suspension should be:

• governed by the applicable sources — the employment contract, any applicable award or enterprise agreement, statute and the employer's power to give lawful and reasonable directions — with continuation of pay considered against those sources rather than assumed one way or the other; suspension without pay should not be assumed lawful without a clear legal basis;
• confirmed in writing, framed as a neutral measure pending investigation rather than as discipline;
• limited in duration and reviewed regularly;
• accompanied by clear directions about confidentiality, contact with colleagues and access to systems; and
• accompanied by appropriate support, including (where relevant) employee assistance program access.

The power to suspend and whether pay continues depend on the employment contract, applicable award or enterprise agreement, statute and the employer's power to give lawful and reasonable directions. A prolonged or poorly founded suspension — for example, one that is indefinite, unreviewed, imposed for trivial complaints, used as de facto discipline or follows the exercise of a workplace right — may create contractual, adverse-action, discrimination or work health and safety risk depending on the facts and reasons.

Common Mistakes That Create Legal Risk

The mistakes that most commonly turn an internal HR matter into expensive external litigation include:

• Failing to investigate, or starting too late, in the hope the complaint will go away;
• Appointing an investigator who lacks independence — the reporting manager, a board ally, a family friend, or a person previously involved in the events;
• Failing to put the allegations in writing in clear, particularised terms before asking the respondent to respond;
• Rushing the process under operational, client or board pressure;
• Conducting joint interviews or mediations where a formal investigation was required;
• Confidentiality breaches — gossip, loose talk in the lunch room, premature emails to the broader team;
• Suspension without justification or without written confirmation of its terms;
• Predetermining the outcome — drafting the disciplinary letter before the response is received;
• Treating reasonable management action as bullying (or vice versa);
• Ignoring the positive duty under section 47C of the Sex Discrimination Act 1984 (Cth), which requires employers to take reasonable and proportionate measures to eliminate, as far as possible, sex discrimination, sexual harassment and related conduct;
• Producing a conclusory report that does not engage with the evidence; and
• Conflating findings with discipline, so that the investigator effectively dismisses the respondent rather than the employer doing so on its own deliberation.

Fair Work Commission Implications

A flawed investigation that culminates in dismissal creates exposure to multiple Fair Work jurisdictions. Under section 387 of the Fair Work Act 2009 (Cth) the Fair Work Commission, in considering whether a dismissal was harsh, unjust or unreasonable, must take into account whether the employee was notified of the reason for dismissal, was given an opportunity to respond, and whether the employer unreasonably refused a support person requested by the employee to assist in any discussions relating to dismissal (s 387(d)). Where the dismissal is found unfair and jurisdictional prerequisites are met, the Commission may order reinstatement; ancillary orders can preserve continuity of employment and restore lost remuneration. If reinstatement is inappropriate, the Commission may order compensation subject to the statutory cap (broadly, the lesser of six months' wages and half the high-income threshold amount).

Investigations that intersect with a workplace right — the making of a complaint, a request for flexible working, taking parental leave, raising a safety concern — may give rise to a general protections claim under Part 3-1 of the Fair Work Act, but only where adverse action was taken for a prohibited reason and the relevant statutory elements are established. A flawed investigation or prolonged suspension does not itself constitute contravention. If the elements are established, general-protections proceedings can carry uncapped compensation and civil penalties, and the reverse-onus provisions place the evidentiary burden on the employer to prove that the adverse action was not taken for a prohibited reason. Investigations involving sex discrimination or sexual harassment can also be ventilated before the Australian Human Rights Commission and the Federal Court under the Sex Discrimination Act 1984 (Cth), and before the Victorian Civil and Administrative Tribunal under the Equal Opportunity Act 2010 (Vic).

Practical Guidance for Victorian Employers

A defensible workplace investigation generally follows this shape:

1. Triage the complaint quickly and document the triage decision;
2. Appoint an independent investigator with appropriate experience;
3. Issue terms of reference in writing, identifying the allegations, scope, methodology and timetable;
4. Consider suspension deliberately and document the reasons;
5. Consider lawful and reasonable confidentiality directions tailored to participants, with disclosure limited to those with a genuine need to know and legitimate exceptions expressly recognised;
6. Gather evidence, including documents and witness statements, before formulating allegations;
7. Particularise the allegations in writing to the respondent, give them a real opportunity to respond and permit a support person where requested and appropriate or required by an applicable award, enterprise agreement or policy — noting separately that s 387(d) of the Fair Work Act addresses unreasonable refusal of a support person requested to assist in discussions relating to dismissal;
8. Make findings on the balance of probabilities — noting that serious findings should rest on evidence sufficiently clear and cogent to produce reasonable satisfaction in the circumstances (consistent with Briginshaw v Briginshaw, which does not create a separate or sliding standard of proof);
9. Produce a reasoned written report; and
10. Take the disciplinary decision separately, with its own decision record and procedural fairness process.

Investigations interact with adjacent employment-law obligations including modern award compliance, classification of the worker as employee or contractor, and post-employment restraints. For broader employment context see our articles on employee or contractor classification and annualised salaries and modern awards.

How Parke Lawyers Can Help

Parke Lawyers advises Victorian employers, directors and HR decision-makers on the full lifecycle of workplace investigations — drafting workplace investigation, bullying and sexual harassment policies, advising on whether and when to investigate, conducting or briefing independent investigations, advising on suspension, confidentiality and parallel regulator or criminal processes, reviewing investigation reports for evidentiary and procedural sufficiency, advising on the disciplinary outcome and termination, and defending unfair dismissal, general protections, discrimination, bullying and adverse-action claims before the Fair Work Commission, the Federal Court, the Victorian Civil and Administrative Tribunal and the Australian Human Rights Commission. Our employment law and commercial and business law teams work together so that classification, contract, investigation, discipline and litigation issues are handled coherently within a single matter.

Frequently Asked Questions