Information Centre · Employment & Workplace Law
Workplace Investigations: What Every Victorian Employer Should Know
For Victorian employers, a workplace complaint is never just an HR issue. How it is investigated — and how that investigation is documented — can shape every legal, commercial and cultural consequence that follows.
For Victorian employers, complaints of bullying, harassment, discrimination or misconduct cannot simply be managed informally and hoped to go away. The way an employer responds — particularly whether and how it investigates — can determine every legal, financial and cultural consequence that follows.
A properly conducted workplace investigation protects employees, supports good decision-making, and provides a defensible record if the matter is later tested in the Fair Work Commission, the Federal Court or another forum. A poorly conducted one can convert a manageable HR problem into a serious legal exposure.
This article is written for employers, directors, managers and HR decision-makers. It is not a guide for employees making complaints — for that, you should obtain your own independent advice.
Why Workplace Investigations Matter
Employers carry significant legal obligations under federal and Victorian law, including under the Fair Work Act 2009 (Cth), the Occupational Health and Safety Act 2004 (Vic), the Equal Opportunity Act 2010 (Vic) and the positive duty obligations relating to sexual harassment. A well-conducted investigation supports compliance with those obligations and:
- protects the health and safety of staff;
- ensures decisions about discipline, performance or termination are based on evidence, not assumption;
- provides a defensible record if the matter proceeds to the Fair Work Commission, a civil court or a regulator; and
- supports the culture, reputation and ongoing operations of the business.
The cost of getting an investigation right is almost always lower than the cost of getting it wrong.
When an Investigation May Be Required
Not every complaint requires a formal investigation, but the threshold is lower than many employers assume. An investigation is typically warranted where:
- a formal complaint is made under a workplace policy (bullying, harassment, discrimination, code of conduct);
- serious misconduct is alleged — for example, theft, fraud, dishonesty, safety breaches or breach of fiduciary duty;
- a safety incident or near-miss raises questions of fault or systemic failure;
- facts are unclear and the employer is being asked to take action against an employee; or
- external regulators, insurers or boards are likely to ask what the employer did in response.
Where the threshold is not met, the employer should still document why a formal investigation was not undertaken and what alternative steps were taken instead.
Common Investigation Scenarios
Bullying complaints
Allegations of repeated unreasonable behaviour directed at an individual or group, including by managers. Particular care is required where the complainant has lodged or is considering an application to the Fair Work Commission for stop-bullying orders.
Harassment allegations
Includes sexual harassment, racial harassment and conduct based on other protected attributes. The positive duty imposes proactive obligations on employers to prevent sexual harassment, sex-based harassment, sex discrimination and victimisation.
Misconduct
Allegations of dishonesty, breach of policy, breach of the employment contract, conflicts of interest or behaviour that damages the employer's reputation.
Theft and dishonesty
Suspected misappropriation of cash, stock, intellectual property or confidential information. These matters are particularly sensitive where police involvement is being considered.
Breaches of workplace policy
Including breaches of drug and alcohol policies, social media policies, IT and acceptable use policies, and codes of conduct.
Safety incidents
Serious injuries, near misses, or incidents notifiable to WorkSafe Victoria. Investigations into safety incidents often run in parallel with regulatory investigations and require careful management.
Principles of a Proper Investigation
A defensible workplace investigation is not just about reaching the "right" answer. It is about reaching that answer by a process that is fair, considered and properly documented. Key principles include:
- Clear scope. Define what is being investigated, what is not, and the policies and standards against which conduct will be assessed.
- An appropriate investigator. Someone with no actual or apparent conflict, sufficient seniority and the experience to conduct interviews and weigh evidence.
- Confidentiality. Information shared on a need-to-know basis only, with clear instructions to participants.
- Timeliness. Investigations should proceed promptly. Long delays are themselves a source of legal risk.
- Documentation. Notes of interviews, copies of relevant documents, and a written report with findings, reasons and (where appropriate) recommendations.
Natural Justice and Procedural Fairness
Procedural fairness is the heart of a defensible investigation. At minimum, this means:
- telling the respondent the substance of the allegations, in sufficient detail to respond;
- identifying the policies, standards or contractual obligations said to be breached;
- giving the respondent a genuine opportunity to be heard, with reasonable time to prepare;
- offering a support person at any interview or formal meeting;
- ensuring decisions are made by someone without actual or apparent bias; and
- providing a clear outcome and an explanation of the reasons.
For a deeper treatment of procedural fairness and how it applies in practice, see our companion article on procedural fairness in workplace investigations.
Common Mistakes Employers Make
- Treating an investigation as a formality to support a pre-formed decision.
- Allowing the person who received the complaint, or who is implicated in it, to conduct the investigation.
- Withholding the substance of the allegations from the respondent until it is too late for them to respond meaningfully.
- Failing to take or keep accurate notes of interviews.
- Making findings that go beyond the evidence, or that rely on uncorroborated assertions.
- Letting the process drift, with weeks or months between steps and no clear timeline.
- Reaching conclusions before the respondent has been heard.
What Happens After an Investigation?
Findings of fact are the start, not the end. Once the investigator has reported, the employer typically needs to:
- consider the findings and what action, if any, is appropriate;
- provide the parties with an outcome at an appropriate level of detail;
- separately consider disciplinary action — usually as a show-cause process — rather than rolling investigation and discipline into a single step;
- consider broader systemic issues — policies, training, supervision, work design — flagged by the investigation; and
- support staff affected by the matter, including through EAP, counselling or workplace adjustments.
Where dismissal or significant discipline is on the table, legal advice should be obtained before the final decision is made.
When Should Employers Seek Legal Advice?
Early advice usually costs less, and protects the business more, than advice obtained after the fact. Employers should consider obtaining legal advice when:
- serious misconduct is alleged, particularly where dismissal is a realistic outcome;
- the matter involves directors, executives, or whistleblower disclosures;
- external regulators (Fair Work, WorkSafe, the Australian Human Rights Commission, the police) are or may become involved;
- the complainant or respondent is legally represented;
- the workplace is small and internal independence is difficult to demonstrate; or
- the employer is unsure whether an investigation is required at all.
Parke Lawyers acts for employers across Victoria — small businesses, family enterprises, not-for-profits, schools and corporate clients — on workplace investigations, disciplinary processes and the broader employment matters that flow from them. For our practice page, see Employment Law for Employers, and for related commercial advice see Commercial & Business Law.
Frequently Asked Questions
When is an employer required to investigate?
There is no single statutory trigger for every workplace, but employers generally need to investigate where a credible complaint of bullying, harassment, discrimination, misconduct or a safety incident is made — or where information comes to light suggesting a serious breach of policy, contract or the law. Failing to investigate can itself expose the business to legal and reputational risk.
Can a manager investigate their own team?
Sometimes, but not always. If the manager is a witness, has a close relationship with the parties, has pre-formed views or is implicated in any way, the investigation should be conducted by someone else — an independent internal investigator, an external HR consultant or a lawyer. Apparent bias is enough to undermine the process.
Do we have to tell the respondent the allegations?
Yes. Procedural fairness requires that the respondent is told the substance of the allegations in sufficient detail to respond. Vague summaries — for example, 'concerns about your conduct' — are not enough.
Can the complainant remain anonymous?
It depends. Confidentiality can usually be maintained throughout the investigation, but full anonymity is often impossible if the allegations are to be properly tested. Employers should be transparent with complainants about what can and cannot be kept confidential.
What standard of proof applies?
Workplace investigations apply the civil standard — the balance of probabilities. The investigator must be satisfied that, on the evidence, an allegation is more likely than not to be true. The criminal standard of 'beyond reasonable doubt' does not apply.
Can an employee bring a support person to an interview?
Yes, and they should be offered one. A support person is not an advocate — they do not answer questions on behalf of the employee — but their presence is an important element of a fair process and is referenced in unfair dismissal cases.
What if the investigation does not substantiate the complaint?
The complaint should be closed, the parties told the outcome at an appropriate level of detail, and any ongoing working relationship managed carefully. An unsubstantiated finding is not a finding that the complainant was dishonest — that requires its own evidence.
Can we dismiss an employee on the basis of an investigation?
Yes, where the findings genuinely justify dismissal and the process was procedurally fair. Even a well-founded conclusion can be undone at the Fair Work Commission if the employee was not given a fair opportunity to respond. Take legal advice before terminating in any contested matter.
Should we use an external investigator?
External investigators are particularly useful for serious allegations, matters involving senior staff or directors, complex factual disputes, or where the workplace is small and internal independence is difficult to demonstrate. They also provide a clearer record if the matter is later litigated.
When should we involve a lawyer?
Early. A short conversation at the start of a matter — to scope the allegations, plan the process and identify legal risks — is generally far less costly than untangling a flawed investigation later. We act for employers, boards and not-for-profits across Victoria.
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We advise Victorian employers, boards and not-for-profits on workplace investigations, disciplinary processes and the legal risks that surround them.
This article is general information only and does not constitute legal advice. Please obtain advice tailored to your circumstances.