An investigation will be appropriate if the matter:

• involves complex or disputed facts;
• is serious and/or has potential risks to the organisation or individuals involved;
• involves allegations of misconduct that could warrant termination of employment;
• could give rise to a legal risk to the business – eg, work health and safety (WHS) compliance;
• concerns sexual harassment, bullying or discrimination, or other criminal conduct (such as fraud); or
• is required under a workplace policy or enterprise agreement.

The factors relevant to whether an investigation is appropriate and how it is implemented include the:

• nature of the complaint;
• need for regulatory compliance;
• potential legal or reputational risk;
• evidence immediately available (such as video surveillance);
• requirement, if any, to investigate under policies and procedures;
• wishes of the complainant and what they want by way of outcome; or
• existence of extraneous factors, such as cultural sensitivities, impact on victims or third-party involvement.

While there is no legislation mandating when an investigation must be carried out, there are circumstances where an investigation may be required to comply with laws, policies, or to mitigate risk including:

• whistle-blowing;
• complaints involving risks to health and safety such as those involving sexual harassment, bullying or harassment, or indicate a hostile work environment; and
• complaints of criminal conduct such as fraud, corruption, money laundering, etc.

Employers should consider if they are required to investigate a matter to comply with a workplace policy, enterprise agreement, or other applicable law.

Other than in relation to whistle-blowers (see 8.1 Whistle-Blowing), there is no formal requirement for an employer to have specific complaints channels (noting that there are obligations to address complaints and identified safety risks).

Depending on the size and nature of the business, it is “best practice” to have a process that will:

• ensure any concerns reported by an employee are confidential, and are only provided to staff who require knowledge to address it;
• ensure that employees who report a concern are protected from victimisation/reprisal action;
• be accessible and understandable;
• clearly explain how the complaint will be handled, and the possible outcomes that may arise;
• ensure that the concern is progressed in an efficient manner; and
• ensure that records in relation to the concern are kept.

A complaints process (including the contact point for an employee to raise a concern) should be documented in the employer’s policies and procedures. The relevant contact person may include the employee’s manager or supervisor.

Australian public companies and large proprietary companies are required to implement a whistle-blowing policy that complies with the Corporations Act 2001 (Cth) (Corporations Act). A whistle-blowing policy may impact the conduct of certain investigations (see 8.1 Whistle-Blowing).

There is no legislation mandating who must conduct an internal investigation. Instead, it is up to the employer to manage an investigation in a way that:

• is effective;
• affords procedural fairness to the participants;
• ensures that the investigation is confidential; and
• addresses legal obligations and mitigates risk.

Workplace policies and procedures often specifically outline the process that will be conducted when a matter is investigated, including who must carry out an investigation. Employers should comply with their policies and procedures.

If an investigation is conducted “in-house”, it is best practice for the person/s responsible for investigating to be:

• trained in how to conduct investigations;
• familiar with the employer’s policies/procedures;
• senior to the employee against whom a complaint/allegation has been made; and
• objective and impartial (to the extent possible).

This may be an HR representative, a member of the WHS function, or the in-house legal team. It can also be a senior manager or board member, depending on the nature of the matter and the positions/seniority of those involved.

Whether to engage an external investigator may depend on:

• the complexity of the matter;
• whether the investigation needs to be covered by legal professional privilege;
• the seriousness of the alleged conduct;
• the seniority of the employee(s) involved;
• the proximity of the potential investigator to the person(s) involved; and
• the nature of the employer’s business and its resources.

In addition, employers should consider if:

• the matter under investigation may result in litigation; or
• the investigation report is relevant to external regulatory action – eg, in relation to breaches of WHS laws.

If so, the employer may wish to engage lawyers to conduct the investigation or to engage specialist investigators in order to establish and maintain legal professional privilege over documents created during the investigation (including the investigation report).

There is no legislation mandating when an internal investigation must be carried out. However, an investigation is likely to be necessary to evidence compliance with laws, policies or to mitigate risk of:

• whistle-blowing complaints;
• risks to health and safety including where complaints allege sexual harassment, bullying or harassment or may indicate a hostile work environment; and
• criminal conduct such as fraud, corruption, money laundering etc.

Refer to 1.1 Circumstances for a discussion of where an investigation will be appropriate or necessary.

There are no circumstances in which an internal investigation is specifically prohibited other than:

• in relation to matters covered by a law that prohibits an investigation without the consent of a particular regulatory authority, such as a Crime and Corruption Commission;
• where it would impede an active criminal investigation (usually upon notification by the police not to investigate); or
• where a court or tribunal orders an investigation not be conducted (or an order that so impedes an investigation that it cannot functionally be conducted).

However, after considering the factors referred to in 1.1 Circumstances, an employer should also consider whether other options to address a matter may be appropriate, such as:

• an informal fact-finding process to obtain further information to identify the true nature of the issues;
• a self-directed resolution – eg, grievance policies may encourage employees to address their concerns at a local level first before it is escalated;
• a mediation, or facilitated discussion – eg, if the grievance is limited to interpersonal issues or conflict, a facilitated discussion between employees may resolve the dispute; or
• if the matter relates to more general concerns, a business may consider undertaking more holistic measures, such as staff surveys, working groups, training or well-being initiatives to address the matter.

Please refer to 1.1 Circumstances and 1.6 Prohibition on Carrying Out an HR Internal Investigation.

A reporter’s legal right to be informed that an investigation is being opened depends on the type of investigation. An investigation conducted under certain statutory frameworks, for example whistle-blowing legislation, may confer an explicit obligation to inform a reporter. 

Workplace policies may also contain a right for the reporter to be notified of an investigation. Employers must comply with any obligation to notify the reporter conferred by policy or statute. Otherwise, the reporter does not have a specific legal right to be informed that an investigation is being conducted. 

There are no general requirements around the information to be provided to a reporter or the notice period given to them before an investigation commences. However, employers should always check and comply with applicable policies or legislation.

Even without a legal obligation, it may be advisable to inform the reporter to show the employer is responding to their complaint. When notifying, the employer should ensure it protects witness identities and only shares information necessary to:

• enable the reporter’s participation if desired;
• reassure them their concerns are taken seriously;
• help prevent reprisal actions;
• provide the contact point for the investigation; and
• provide details of employee support services. 

Employers should consult relevant legislation and policies for specific guidance. 

A respondent has a general right to be informed that an internal investigation will be opened.

Notifying the respondent is part of an employer’s procedural fairness obligations to the respondent as it enables them to respond to the allegations. Employment policies and some legislation governing the type of investigation being conducted will also confer a specific right for the respondent to be informed.

Employers should comply with applicable policies or legislation to determine what information should be provided. Procedural fairness requires informing the respondent of the specific allegation/s being investigated. While no general notice period applies, at least 24 hours’ notice is recommended to allow a response and to provide procedural fairness.

It is best practice to notify a respondent of:

• the investigation and specific allegations;
• the investigation timeline;
• relevant policies or laws; 
• directions related to the conduct of the respondent during the investigation (eg, a confidentiality direction or a direction not to attend the workplace);
• any rights they may have (eg, to dispute the investigation);
• details of employment support services or other wellbeing support; and
• the investigator and key contact person.

In some circumstances, there may be a legislative requirement to notify an authority about the content or commencement of an investigation. This includes:

• in some circumstances, reporting suspected misconduct to a financial regulator under the Corporations Act and related legislation;
• reporting significant data breaches under the Privacy Act 1998 (Cth) (Privacy Act) to the Office of the Australian Information Commissioner;
• notifying the WHS regulator of a serious work-related injury, illness or incident under WHS legislation;
• notifying the Commonwealth Ombudsman of a public interest disclosure (PID) investigation under the Public Interest Disclosure Act 2013 (Cth) (PID Act); 
• notifying a workers’ compensation insurer if the investigation involved a work-related illness or injury; and
• reporting suspected cases of child abuse or neglect to the police under State and Territory legislation.

This is not an exhaustive list, and employers should review any relevant legislation carefully to ensure compliance. 

Notifying Police

Depending on the nature of the criminal conduct that may have occurred, the employer may have a legal obligation to report the matter to police or other relevant law enforcement authorities. The relevant authority should be notified of the conduct in question and relevant parties involved to enable appropriate action to be taken.

Where the criminal offence was allegedly committed against the complainant, it may be appropriate to offer to support the complainant to make a report to police and respect their wishes if they choose not to do so (noting that the employer may still need to conduct a workplace investigation even if the employee does not make a police report). 

Lawful and Reasonable Directions to Maintain Confidentiality

Maintaining confidentiality in an investigation is key to protecting its integrity and the privacy of those involved. It is common practice for employers to give a lawful and reasonable direction to employees participating in an investigation, including the complainant, to keep the matter confidential. If the employee fails to comply with the direction, it may be grounds for the employer to take disciplinary action against the employee. 

A confidentiality direction will usually still permit an employee to access support or advice as appropriate.

Confidentiality Agreements and NDAs

A complainant may also be asked to sign a confidentiality agreement or NDA. This is not standard practice and generally a direction to maintain confidentiality would be sufficient. A formal confidentiality agreement or NDA generally only occurs as part of a settlement of a claim. 

Such agreements can protect the reputation of the employer but have been criticised by the Australian Human Rights Commission (AHRC) as silencing complainants. The AHRC has issued specific guidance for the use of NDAs and confidentiality terms when settling matters involving allegations of sexual harassment or assault.

Employers should be prepared to negotiate the terms of any proposed confidentiality agreement and consider whether a direction relating to confidentiality is more appropriate.

Purpose of a Preliminary Investigation

It is common practice to conduct a preliminary investigation to determine:

• whether there is sufficient information to proceed;
• the identity of relevant witnesses; 
• whether the alleged misconduct can be addressed via a non-investigative pathway; and
• whether it is necessary to stand down the respondent.

A preliminary assessment can lead to a formal investigation, a non-disciplinary outcome or the complaint being closed.

However, it is not always necessary to conduct a preliminary investigation (eg, where the allegation is serious or the circumstances are clear) unless it is required by a policy and/or workplace instrument.

Reporter

The purpose of interviews is to gather and test evidence to form a factual finding as to what occurred. However, the reporter is often interviewed first to provide their recollection of events and identify any relevant witnesses. 

Witnesses

The investigator will then interview witnesses. There are no rules regarding the number of witnesses who should be interviewed. The key is to gather sufficient credible evidence to determine whether or not the alleged conduct occurred on the balance of probabilities. 

Respondent

The respondent is generally interviewed last. To provide procedural fairness, they must be given an opportunity to respond to all the witness evidence and allegations against them.

An employee may be reluctant to participate, either as a witness or respondent. In these circumstances, the courts have recognised that an employer can issue a lawful and reasonable direction to the employee to attend an interview. A direction should be provided in writing and specify the purpose of the interview.

However, an employer cannot require an employee to answer a question where the answer would:

• incriminate the person in relation to a criminal offence;
• disclose information the person is legally obliged to keep confidential; or
• disclose information that is subject to legal professional privilege.

An employee does not have a general right against self-incrimination outside criminal matters.

Failure to comply with an employer’s direction to participate in an investigation, including by attending an interview, may provide grounds for the employer to take disciplinary action against the employee.

It is best practice to conduct interviews face-to-face, either in person or if necessary, via a videoconference. This allows the investigator to form a holistic view about the witness’ credibility.

Ideally interviews should not be conducted over the telephone, as this prevents the investigator from being able to properly assess the witness’ credibility.

The investigator should conduct the witness interviews. Ideally, the investigator should be:

• trained in conducting workplace investigations or have experience in applying the relevant policies;
• senior to the employee whose conduct is under investigation; 
• impartial to the investigation, such as an external investigator;
• trained in trauma-informed approaches to conducting investigations; and
• if the investigation involves sexual harassment, the complainant may also prefer speaking to an investigator of a particular gender, which should be accommodated if possible.

There are instances in which it can be helpful for a neutral party to attend as a witness to an interview. This can include where:

• the employee is likely to make complaints about the investigation process;
• there are concerns regarding the employee’s conduct towards the investigator;
• the employee has not consented to the interview being recorded and it is necessary for a witness to prepare a detailed file note; or
• the employee has requested that a neutral party attend, including as a reasonable adjustment for a relevant disability.

It is best practice to allow interviewees to bring a support person to an interview, particularly where it may result in disciplinary action or termination of employment. This will reduce several risks, including of workers’ compensation claims and of creating a psychosocial hazard.

Under the Fair Work Act 2009 (Cth) (FW Act), a factor in determining whether an employee was unfairly dismissed is if an employer unreasonably refused to allow a respondent to bring a support person to an interview (Section 387). Before interviewing a respondent, the employer should determine if they are entitled to unfair dismissal protections (which is based on their employment period, income and applicable award or enterprise agreement).

An employer’s policies or procedures may also entitle a respondent to have a support person present.

An interviewee should not be denied a support person on the basis that the support person is a lawyer. 

While the support person can be a lawyer, an investigator is entitled to insist that any such support person only act in their capacity as a support person, and not as a lawyer or advocate.

At the start of the interview, the interviewer should explain why the interview is occurring. This may include referring to any prior correspondence confirming the allegations and the purpose of the interview.

If the interview is being recorded, this should also be confirmed. Permission to record the interview may be required in certain jurisdictions. 

The interviewer should confirm that the interviewee has been offered the option to have a support person with them. If there is no support person present, the interviewer should ask the interviewee to confirm that they do not need a support person. If a support person is present, the interviewer should ask the support person to confirm they understand their role is to provide support, and not to advocate for the interviewee.

It is best practice for the interviewer to remind interviewees of (and have them agree to) confidentiality obligations and that all persons involved in the investigation have the right to participate in the investigation without fear of reprisal, and that any retaliatory action taken against anyone for participating in the investigation process may result in disciplinary action, including termination.

At the conclusion of the interview, the interviewer should ask the interviewee if they have any questions and advise on next steps as appropriate. 

The interviewer should conclude by reminding the interviewee of:

• confidentiality obligations;
• any applicable employee assistance programme services available; and
• the non-retaliation obligation.

If an interviewee requests to stop the interview, the investigator should acknowledge and record the request, clarify the reason for the request to stop the interview, and if appropriate offer the interviewee a short break.

The investigator should remind the interviewee of their obligations to co-operate with the employer’s investigation.

Should the interviewee maintain their request to stop the interview, the investigator should cease the interview at that time and, depending upon the reason for stopping the interview, obtain advice and reschedule. 

If necessary, the employer may issue a lawful and reasonable direction requiring the employee to participate and attend the interview with the investigator. 

If an employer directs an employee to continue with an interview, the employer should advise the employee that failure to co-operate may result in disciplinary action being taken, up to and including termination.

In circumstances where the interview is not recorded (see 3.11 Recording), the investigator or a witness for the investigator should take detailed file notes and a written record of interview should be prepared by the investigator, noting key evidence and matters discussed.

The investigator should inform the interviewee prior to the interview that they will be taking notes and producing a record of interview.

It is best practice to provide the record of interview to the interviewee to review and sign to acknowledge its accuracy. Where the interviewee disagrees with parts of the record of interview, this should be noted.

It is best practice to record the interview noting that, depending on the jurisdiction, the interviewee’s consent may be required.

The investigator will often arrange for a transcript of the recording to assist with reviewing the evidence.

An interviewee may request a transcript of the interview recording. This should be assessed on a case-by-case basis. For example, is it necessary to maintain the confidential and privileged character (if relevant) of the document.

In addition to the transcript, it can be advisable to provide the audio recording to avoid an allegation that the transcript has been “doctored”.

If a transcript is provided, the interviewee should be advised the document is confidential and cannot be shared with any other person. It is not usually appropriate to share the transcript of an interview with other witnesses who are not the interviewee as this will jeopardise the integrity and impartiality of the evidence.

If the interviewee does not consent or refuses to participate without being provided with a transcript, the interviewer or a witness may take manual notes of the interview, as an alternative to audio recording the interview.

Apart from interviews, other types of fact-finding may be used in an investigation. These include:

• having participants respond to questions or provide information in writing;
• reviewing of documentary materials; and
• reviewing of data on electronic devices.

The use of any form of fact-finding should be informed by relevant legislation (including whistle-blower, privacy, electronic surveillance and workplace surveillance legislation), the terms of any contract of employment or engagement with any impacted parties, and principles of procedural fairness.

An employer has:

• a duty of care to avoid psychiatric injury to its employees, which includes:
1. take timely action in response to workplace complaints and investigations;
2. provide reasonable support to employees during a HR internal investigation; and
3. preserve confidentiality;
• a duty under WHS legislation to ensure, as far as reasonably practicable, the health and safety of employees; and
• duties under anti-discrimination legislation and the FW Act to ensure that an employee is not discriminated for prescribed reasons.

Measures that the employer may take as best practice, include:

• ensuring adequate support is provided and/or offered to the reporter, which may include access to workplace counselling or employee assistance programmes;
• allowing the reporter to work remotely;
• temporarily or permanently alter work duties of the reporter; and
• remove the reporter from direct reporting lines which include an employee against whom they have made a complaint.

If the employer does not act appropriately, it risks claims that it has not complied with one or more of the duties that it owes to its employees.

The employer’s duties to the respondent are the same as those owed to the reporter.

Accordingly, the employer should also consider those duties in the context of the respondent in HR internal investigations.

Additionally, suspension from employment may be appropriate in certain circumstances.

A respondent may claim the employer has breached one of its duties to them by taking certain protective measures. See 4.1 Protection of the Reporter in relation to the risk of claims.

Depending on the seriousness of the alleged conduct, the employer may suspend the respondent (either with or without pay depending on their employment terms) pending conclusion of the investigation.

The employer may suspend an investigation pursuant to the terms of the employee’s contract of employment, an applicable industrial instrument (eg, enterprise agreement) and/or the employer’s duty under WHS legislation to maintain a safe working environment. Where an employer suspends an employee pursuant to a right under a contract of employment or industrial instrument, the employer will need to comply with specific terms of the instrument. The right to suspend under WHS legislation is discussed further in response to 4.4 Protection of Other Employees.

It is generally not recommended that an employer take disciplinary measures (eg, issuing warnings or termination) prior to concluding the investigation as doing so may expose the employer to challenges by the respondent regarding the investigation process.

Under state and territory WHS legislation, there is an obligation to, so far as reasonably practicable, ensure the health and safety of workers. Employers must take actions to protect complainants, respondents and witnesses, from physical and psychological harm arising during an investigation, so far as is reasonably practicable.

What is reasonably practicable will require an assessment of the likelihood of the risk arising and the degree of harm that might result. It may be reasonable for the employer to suspend a respondent during an investigation where the alleged conduct poses a risk to other employees.

Other measures that can be taken include those referred to in response to 4.1 Protection of the Reporter.

If an employer does not take measures to protect other employees, an employer can be found to have breached their duties and may be liable for significant penalties.

Employers should ensure that any investigation is conducted in a reasonable and procedurally fair manner. Procedural deficiencies in an investigation may undermine any subsequent decision-making process and may expose the employer to legal and reputational risk.

The concept of procedural fairness is flexible. However, it generally requires that the individual being investigated be:

• informed of the allegations being made against them; and
• given a reasonable and sufficient opportunity to respond.

Employers will normally be expected to ensure that:

• any allegations are put to the respondent;
• the allegations are described in a way that allows the respondent to properly respond;
• the respondent is given a reasonable opportunity to respond;
• the respondent is allowed to bring a support person to attend any investigation meetings or interviews;
• the investigation is conducted by an impartial investigator;
• no determination is made prior to the conclusion of the investigative process (such that the respondent is given a genuine opportunity to respond and influence any findings);
• those involved are directed to keep the matter confidential;
• information concerning the investigation is only disclosed on a “need to know” basis;
• any applicable employment policies and procedures are followed;
• all relevant evidence is gathered and considered prior to the investigator making their findings; and
• there is a reasonable basis on the evidence before the investigator to make their findings.

The employer should ensure that any specific procedural requirements that apply to an investigation process are followed. 

Employers may have workplace policies and procedures that go beyond the requirements described in response to 5.1 Requirements.

An employer may elect to have more prescriptive processes (for example, relating to timelines or providing rights of review) in an employee’s contract of employment, an enterprise agreement or a workplace policy.

However, there are significant risks that can arise if applicable policies and procedures are not followed. It is therefore advisable to avoid overly prescriptive internal policies or procedures. It is also advisable to clarify in any such policies (and contracts where they reference a policy) that they are not incorporated into their employees’ employment contracts and do not impose contractual obligations on the employer.

In circumstances where the conduct alleged is being relied upon to terminate employment, the burden of proof rests with the employer.

Employers must generally be satisfied that the alleged misconduct occurred “on the balance of probabilities”.  This requires the employer to be satisfied that, considering all the evidence, the alleged misconduct is more likely to have occurred than not. 

This is referred to as the “Briginshaw principle” (named after the 1938 High Court case of Briginshaw v Briginshaw).

It is important to note that in accordance with this principle an employer requires stronger evidence in circumstances where the alleged misconduct is more serious. While it does not alter the required degree of proof (it is still the balance of probabilities), it may alter the kind of evidence that an employer can reasonably rely on in the circumstances.

There are no specific legislative rules that govern when an investigation must end. In practice, an investigation concludes once the investigator has completed their investigation report and has provided their findings/conclusions to the decision-maker.

An employer/investigator may also need to consider ending, discontinuing, or suspending an investigation if:

• the employee against whom the complaints have been made has been absent from the employer’s workplace for an extended period of time (particularly if they are on sick leave); 
• the employment of the complainant or the employee against whom complaints have been made ends before the investigation is concluded (and this significantly impacts the ability to conclude the process); and/or
• a determination is made that the complaints are without merit and investigating them would be an abuse of process.

Any process undertaken by the employer in relation to commencing, undertaking and concluding an internal investigation should be consistent with any workplace policies and industrial instruments that apply.

The procedures that follow an internal investigation will depend on:

• the terms of reference for the investigation; 
• the employer’s policies and procedures relating to workplace investigations; and 
• any relevant provisions in an industrial instrument that may apply.

However, in practice, (after completing the steps set out in 6.1 Deciding to End an HR Internal Investigation) the decision-maker will generally:

• send a letter to the complainant and employee against whom the allegation/complaint has been made (subject officer), summarising the allegations/complaints, the findings and the basis for the findings;
• write to witnesses advising them that the investigation has concluded and reminding them of their obligation to maintain confidentiality; and
• implement what measures it considers necessary, including any disciplinary process if relevant.

There are no specific requirements governing how an investigation must conclude. Instead, how an investigation will be formally concluded is typically outlined in:

• the terms of reference for the investigation; and/or
• the employer’s policies and procedures relating to workplace investigations.

Similarly, there are no specific rules governing the form of findings/conclusions. Best practice requires the findings/conclusions of the investigation to be presented in a written investigation report.

This provides the basis on which the investigation findings can be reviewed, agreed to or challenged and ultimately defended.

The form and content of the report will be discussed in 6.4 Reports.

A report should include:

• the terms of reference for the investigation;
• the methodology used during the investigation;
• an explanation of how the employer’s policies/procedures have been complied with (including evidence of how this has been achieved);
• the standard of proof against which each of the allegations has been assessed;
• an assessment of witness credibility, if required;
• a summary of each allegation and the relevant evidence;
• the investigator’s findings/conclusions and the relevant supporting evidence; and
• a list of or copies of documentary materials received during the investigation (eg, interview transcripts, statements, etc).

An investigation report may also include suggested next steps/recommendations in relation to the specific allegations or to address issues in the workplace more generally.

There is no legislative right to receive any information flowing from an internal investigation. A right to information may be built into policy or an industrial instrument.

Best practice requires both the complainant and subject officer be informed of the outcome of the investigation. Failing to provide information about the outcome may impact an employer’s ability to rely upon it.

The need to communicate the outcome does not mean that the full investigation report must or should be provided to the parties. Instead, the relevant decision-maker should write to the complainant and the subject officer to:

• summarise each allegation/complaint made against the employee;
• outline the finding for each allegation (being substantiated, unsubstantiated or disproven); 
• outline the reasons for the findings; and
• communicate next steps.

An employer may be required to report the outcome to authorities, particularly if the investigation reveals potential criminal conduct or serious breaches of laws.

If an investigation reveals that criminal conduct may have occurred, the employer may have a legal obligation to report the matter to police or other relevant law enforcement authorities. The relevant authority should be notified of the conduct in question and relevant parties to enable appropriate action to be taken.

Various government authorities or regulatory bodies may also be informed as to the outcome of an investigation or may be involved in the investigation process. Such bodies may include:

• Fair Work Ombudsman (FWO);
• Fair Work Commission (FWC);
• Australian Human Rights Commission (AHRC);
• WorkSafe (or other safety regulator);
• Commission for Children and Young People (CCYP);
• Australian Securities and Investments Commission (ASIC); and
• Office of the Australian Information Commissioner (OAIC).

Other industry oversight authorities may also need to be informed if the investigation reveals breaches of industry-specific laws (such as healthcare or finance). 

In order for an outcome to be reached following the conclusion of an investigation, it is necessary for the relevant decision-maker to be provided with a copy of the full report in order to consider the findings, conclusions, recommendations and the basis of those findings.

It is appropriate to inform managers or supervisors of the affected parties (the complainant, the respondent or both) of the outcome, to ensure appropriate action is taken in line with organisational policies and procedures. It is not necessary to provide a copy of the report, however, a concise overview of the findings of fact established during the investigation may be appropriate.

Team members and/or other employees of the organisation, who are not involved in the investigation, generally do not need to be informed as to the outcome of the investigation, particularly if it involves personal or sensitive matters relating to the affected parties. 

However, if the investigation was high-profile, impacted the overall work environment and/or the outcome of the investigation will affect the broader team dynamics, a general communication may be appropriate to maintain transparency.

Where some or all the allegations have been substantiated, a number of disciplinary measures may be taken (assuming the employee remains in their employment). Some common disciplinary measures include:

• termination of employment;
• demotion (in limited circumstances);
• re‑assignment of duties;
• a reprimand/warning; and/or
• counselling.

Below is a non-exhaustive list of factors that may be relevant to determining the appropriate disciplinary sanction:

• seriousness of conduct;
• seniority of the employee;
• service history;
• expressions of remorse and co-operation with investigation process;
• degree of control; and
• internal policies and procedures.

At the completion of an investigation, employers should consider whether there are any other actions that should be taken. This may be appropriate even where allegation/s have not been substantiated.

For example, it may be that broader cultural issues within the organisation have been identified through the course of the investigation, a series of concerns or complaints have been raised over a period, or behavioural patterns are identified in a particular workplace that require intervention.

Where a cultural issue is widespread, organisation-wide actions may be appropriate.

Where an issue is confined to a specific team or area, targeted local management actions may be more suitable. The intention is to utilise early intervention to prevent similar misconduct from being engaged in. This might include:

• group and/or individual counselling, training and/or mentoring;
• informal or formal performance improvement processes;
• changes to reporting structures, increased levels of supervision; and/or
• alternative dispute resolution.

An employer can collect personal data for the purposes of an investigation. There are some limitations (applies to companies with turnover of AUD300,000 or more).

Under the Privacy Act, “personal information” must not be collected unless reasonably necessary for the organisation’s functions or activities. “Personal information” means information about an identified (or reasonably identifiable) individual, whether it is true or not, and whether it is recorded in a material form or not. Employers must take care to ensure that they are not collecting more information than is reasonably necessary for the purposes of carrying out the investigation.

An employer must not collect “sensitive information” about an individual without consent unless an exception applies. “Sensitive information” includes information about an individual’s racial or ethnic origin, political opinions, religious beliefs or affiliations, sexual orientation or practices, criminal record or health information, among other things.

Employers must notify an individual of certain matters at or before, or as soon as practicable after, collecting personal information about the individual, including the purposes of the collection and the consequences for the individual if the information is not collected.

Personal information should only be collected by lawful and fair means. Relevant legislation (including whistle-blower, privacy, electronic surveillance and workplace surveillance legislation) applies. For example, consent must generally be obtained before recording a private conversation, such as a phone call.

Other specific rules that apply to the collection of personal data include those set out in 7.1 Collecting Personal Data.

While there are some rules that must be followed in relation to the use and disclosure of personal information under the Privacy Act, the effect of the “employee records exemption” (detailed in 7.3 Access) is that the Privacy Act does not apply to an act or practice that is directly related to a current or former employment relationship between an employer and the individual, and an employee record held by the employer in relation to the individual.

Parties to an investigation do not typically have a right to access personal data collected in the context of that investigation.

The Privacy Act generally does not provide an avenue to request access to information directly related to a current or former employment relationship between the employer and the individual, or an employee record held by the employer in relation to the individual. While the Privacy Act may not apply, the FW Act does allow for an employee to request records on their file, in some circumstances.

If an employee seeks access to information under the Privacy Act or the FW Act, specific advice will be needed about exceptions that may apply.

Whistle-blowing protection regimes are contained in Australian legislation, including the Corporations Act and Tax Administration Act 1953 (Cth) (Tax Administration Act).

Disclosable Matters

The whistle-blower protections under the Corporations Act cover disclosures of information which an eligible whistle-blower has reasonable grounds to suspect concerns misconduct, or an improper state of affairs or circumstances, in relation to a regulated entity or a related body corporate. This includes conduct that:

• constitutes an offence against a range of prescribed corporate and financial sector legislation;
• constitutes an offence against any law of the Commonwealth that is punishable by at least 12 months’ imprisonment; and/or
• represents a danger to the public or financial system.

The Tax Administration Act also provides protections in relation to disclosures relating to a breach of Australian tax law or tax-related misconduct.

Eligible Whistle-Blowers

Eligible whistle-blowers include current or former officers, employees, suppliers or employees of suppliers, or associates of the regulated entity, and their relatives or dependants.

Eligible Recipients

Eligible recipients include:

• an officer or senior manager of the body corporate or a related body corporate;
• an actuary or auditor of the body corporate or a related body corporate;
• ASIC, Australian Prudential Regulation Authority, or in the case of tax-related misconduct, the Australian Commissioner of Taxation;
• a legal practitioner, for the purposes of obtaining legal advice in relation to the operation of the whistle-blower protections; or
• a person authorised by the body corporate to receive disclosures that may qualify for protection (for example, in its whistle-blower policy).

In limited circumstances, “public interest” or “emergency” disclosures made to journalists or parliamentarians may also attract protection.

Protections

There are two key protections where a disclosable matter is disclosed by an eligible whistle-blower to an eligible recipient.

• Confidentiality of a whistle-blower’s identity: The identity of an eligible whistle-blower, or information that is likely to lead to their identification, must not be disclosed without the eligible whistle-blower’s consent unless the disclosure is otherwise authorised under the Corporations Act or Tax Administration Act.
• Protection from detriment: It is an offence for a person to engage in conduct (or threaten to engage in conduct) that causes detriment to another person, if the reason for the conduct is that the first person believes or suspects that the other person (or another person) made, may have made, proposes to make, or could make a disclosure that qualifies for protection.

Breaches of these protections may give rise to significant civil and criminal penalties. Other protections apply, including protection from liability for making a report (although there is no immunity from the consequences of any misconduct revealed by the report), and the ability to seek compensation and other remedies through the courts due to loss, damage or injury suffered because of a disclosure.

Other Whistle-Blower Protection Schemes

Separate protections exist for the disclosure of wrongdoing in the public sector under federal, state and territory-based PID schemes.

Commonwealth – General Provisions

Section 340 of the FW Act prevents an employer/principal from taking adverse action against an employee/contractor because the person exercises a workplace right.

A person exercises a workplace right if they make a complaint/allegation of sexual harassment. In relation to contractors, that complaint needs to be under a “workplace law”. This is a broad term that includes legislation that regulates relationships beyond just employment.

Adverse action can be any form of detrimental treatment or alteration to terms and conditions of engagement.

These provisions provide an avenue for workers to bring a complaint in the FWC where they believe they have suffered sexual harassment and have been treated adversely because they have raised a complaint about it.

Commonwealth – Sex Discrimination Act 1984 (Cth)

Section 47C of the Sex Discrimination Act 1984 (Cth) (SDA) imposes a positive duty on organisations to take reasonable and proportionate measures to eliminate sexual harassment as far as possible.

Section 28A of the SDA states that sexual harassment will occur if:

• the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
• engages in other unwelcome conduct of a sexual nature in relation to the person harassed,

in circumstances where a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

Similar provisions are contained in state-based discrimination legislation that prohibits and provides remedies for sexual harassment and sex discrimination.

Workers have a right to bring a claim at both a state and federal level to seek redress for sex discrimination and sexual harassment.

State – WHS Laws

Each state within Australia also has WHS legislation that aims to:

• eliminate risks to health and safety, so far as is reasonably practicable; or
• if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.

Regulations extend the obligation of managing the risks to the health and safety of workers from sexual harassment and sex or gender-based harassment.

In addition to the specific workplace protections noted above, criminal sanctions exist for sexual violence.

Commonwealth – General Provisions

Please see 8.2 Sexual Harassment and/or Violence for a summary of the adverse action laws. These can extend to a complaint relating to other forms of discrimination which has resulted in adverse treatment of the person.

Further rights exist for employees to bring a claim in circumstances where they are subject to discrimination by the employer and that discrimination gives rise to adverse action.

Discrimination includes a number of protected attributes such as:

• race;
• colour;
• sex;
• sexual orientation;
• breastfeeding;
• gender identity;
• intersex status;
• age;
• physical or mental disability;
• marital status;
• family or carer’s responsibilities;
• subjection to family or domestic violence;
• pregnancy;
• religion;
• political opinion;
• national extraction; and
• social origin.

Discrimination Laws

Separately, federal and state laws exist that prohibit discrimination on the basis of protected attributes in designated areas and provide avenues for individuals to bring complaints of discrimination to seek rectification and a remedy.

The discrimination legislation is not confined to the workplace and prohibits discrimination in many facets of life.

Individuals, including workers, who are subject to discrimination based on a protected attribute can bring a claim before the relevant Australian or State Human Rights Commission seeking redress, which may include removal of any detriment imposed, and/or compensation.

The list of protected attributes that support a claim of discrimination vary from state to state and federally but many include the protected attributes listed above.

In Australia, there are a number of specific protections against bullying and harassment. These protections include:

• under the FW Act, a worker can apply to the FWC for an order to stop the alleged bullying. Where an application is made to the FWC, an order may be to prevent further bullying, but no compensation may be ordered;
• the general protections regime under the FW Act prohibits adverse action being taken for making a complaint about bullying or harassment. If a claim is successful, various remedies are available, including uncapped compensation and civil penalties;
• the Work Health and Safety Act 2011 (Cth) (the “WHS Act”), and equivalent state-based legislation, impose a duty to ensure the health and safety of workers so far as reasonably practical, which includes preventing bullying and harassment. Implications can be significant including both criminal and civil penalties; and
• under the SDA, there is a positive duty to take reasonable and proportionate measures to eliminate sexual and sex-based harassment and hostile workplaces.

Bullying is repeated unreasonable behaviour towards a worker that creates a risk to health and safety. However, reasonable management action carried out in a reasonable manner is not bullying.

Sexual harassment occurs when a person makes an unwelcome sexual advance or request for sexual favours or engages in other unwelcome conduct of a sexual nature. There must also be a reasonable expectation that the worker being sexually harassed would be offended, humiliated or intimidated.

Where an investigation concerns allegations that are criminal in nature, employers need to exercise caution, particularly if criminal charges are filed.

There are limited situations where mandatory reporting requirements exist. Employers may have an obligation to report to a regulator in the following (non-exhaustive) circumstances:

• the relevant safety regulator may need to be notified of certain workplace incidents immediately after becoming aware of that incident;
• certain employees in education or health care may be required to report allegations relating to a child having suffered harm as a result of physical injury or sexual abuse; and
• where a breach of privacy legislation occurs, such as an eligible data breach, there may be obligations to notify the regulator.

It is recommended that employers seek specific advice when investigating allegations that are criminal in nature.

Employers should be cautious and ensure that they do not interfere with the criminal investigation in any manner. This includes ensuring that any concurrent internal investigation does not compromise evidence or the legal process. Where there is a criminal investigation underway, this will not preclude the employer from finalising its own investigation, which meets a lower standard of proof as referred to at 5.4 Degree of Proof above.

Employers may choose to pause or suspend an internal investigation while a criminal matter progresses. This may involve implementing interim measures such as suspending the employee or the reassignment of duties.

Employers should take steps to protect the safety and welfare of other employees if necessary.

There are no specific restrictions that apply to foreign employers when carrying out internal HR investigations. Similarly, there are no specific restrictions on Australian employers carrying out internal HR Investigations in other jurisdictions.

The only limitations would be in respect of local laws, which would apply equally to local and foreign employers:

• employees should consider that Australian legislation may still be applicable, despite the investigation concerning conduct or matters in another jurisdiction; and
• if there are specific matters that must be addressed or taken into consideration under the other jurisdictions laws.

In particular, the FW Act may apply extraterritorially to:

• employees in other jurisdictions when employed by an “Australian employer”; and
• employees capable of being classified as “Australian-based employees” regardless of whether the employer is an “Australian employer”.

In respect of employers who are not Australian employers, determining whether an employee located abroad is in fact an “Australian-based employee” is a factual question with the answer turning on the individual employee’s specific circumstances.