Workplace Investigations: A Practical Guide for Employers

Workplace investigations are a critical part of managing complaints, addressing misconduct and defending legal claims. When conducted properly, investigations support fair outcomes, procedural integrity and lawful decision‑making. When handled poorly, they can expose employers to significant legal and reputational risk.

This article outlines the key do’s and don’ts for conducting effective, fair and legally sound workplace investigations.

Why conduct a workplace investigation?

In many workplaces, the need for investigations will be quite common. The following are the main reasons why investigations become necessary:

• an employer becomes aware of conduct that may justify disciplinary action or dismissal, such as breaches of policy, workplace rules or the law

• an employee raises a complaint about the behaviour of another employee, including allegations of harassment, bullying or inappropriate conduct

• issues arise under the Fair Work Act 2009, such as claims involving workplace rights or alleged adverse action

• serious incidents occur, including theft, fraud, safety breaches, misuse of company property, or discrimination.

Examples of incidents that must be investigated include allegations of theft or fraud, fighting, harassment, drug-taking, breaches of safety provisions, damage or misuse of company property (eg vehicles, computers), discrimination, contravening workplace rights, etc.

An investigation has two purposes:

• to determine whether alleged incidents actually occurred

• to identify and take account of any mitigating circumstances of the alleged incidents.

The bottom line for management is to only act on the basis of provable facts, not hearsay or suspicions, and be able to justify every action you take.

What a workplace investigation involves

To conduct an effective investigation, you need to understand:

• your legal obligations

• the investigator’s role

• how to collect evidence

• how to interview witnesses and take statements from them

• how to record and prepare witness statements

• how to prepare and structure an investigation report

• what to do after you have prepared the report.

Legal obligations and risks

If you dismiss an employee, or take disciplinary or other adverse action against them without investigating an alleged incident first and establishing the relevant facts (ie that it actually occurred), it is possible that the Fair Work Commission or a tribunal or court may find that the dismissal or disciplinary action was harsh, unjust or unreasonable in the circumstances of the case. Remedies may include reinstating the employee and/or payment of compensation or damages.

So while an investigation may be costly and time-consuming, it is arguable that the cost of NOT conducting one will be even greater.

The investigator’s role

The investigator’s role is simply to establish the facts of the matter, not to determine whether anyone is 'guilty' or 'innocent'. The investigator prepares a report, but deciding how to act upon its findings is a separate process that often involves other parties, e.g. a more senior manager.

Conduct any investigation as soon as practicable after it becomes necessary, otherwise you may send the message that you do not regard the alleged incident as serious, and may even be perceived as condoning the behaviour. Also, delays make it harder for witnesses to remember what really happened, which may later undermine your case.

Note: if an issue arises, you should approach the employee involved FIRST to discuss the matter with him/her, before you contact any witnesses.

If an investigation is likely to take some time, inform the 'accused' or complainant of that, estimate the time required if possible, but emphasise that any delay does not imply that the alleged conduct is condoned.

Collecting evidence

Key principles for evidence collection include:

• gathering evidence not only about whether the conduct occurred, but also whether the employee was involved and whether mitigating factors exist

• focusing on witnesses with first‑hand knowledge

• maintaining confidentiality as far as reasonably possible

• avoiding “fishing expeditions” that are unfocused or speculative

• avoiding leading questions—allow witnesses to recount events in their own words

• recording statements accurately and objectively, without interpretation or embellishment.

Witnesses should focus on observable facts rather than opinions. Where possible, objective evidence (such as emails, records or CCTV footage) should also be reviewed, subject to applicable privacy and surveillance laws.

Managing witness reliability

Not all witness evidence will carry the same weight. Some witnesses may be inconsistent, reluctant or limited in their recall. Where concerns about reliability arise:

• document reasons for weighting or discounting evidence

• avoid assumptions about motive or credibility

• seek corroborating or objective evidence where possible.

If adverse findings are made, there must be sufficient evidence to support the decision on the balance of probabilities.

Preparing the investigation report

A clear, neutral and well‑structured report is essential. Best practice includes:

• presenting events in chronological order

• clearly distinguishing between facts and findings

• recording exactly what witnesses said (using quotation marks where exact words are recalled)

• using neutral language and headings

• separating factual statements from conclusions.

Statements should record facts only. Opinions or conclusions should be reserved for findings, if required by the investigation brief. Reports that appear argumentative or judgmental may carry less evidentiary weight if scrutinised by a court or tribunal.

Presenting findings to the employee

If allegations are substantiated, the employee must be:

• informed of the findings;

• given a reasonable opportunity to respond; and

• advised of what action may follow.

Employees are generally entitled to support or representation during meetings, such as a support person or union representative.

Confidentiality should be maintained as far as possible, while still ensuring procedural fairness. If allegations are not substantiated or the investigation is inconclusive, the employee should still be informed of the outcome and the basis for the decision. Regardless of the outcome, employers should remain neutral, factual and professional throughout the process.

Record-keeping

Employers should ensure they maintain records of:

• the original complaint or allegation

• investigation steps taken

• evidence collected

• findings and outcomes.

These records are critical if a matter later progresses to external review, legal proceedings or regulatory scrutiny.

Key takeaway for employers

A well‑run workplace investigation protects both employees and employers. Fairness, objectivity and process are as important as the outcome. By acting promptly, proportionately and on the basis of evidence, employers can make defensible decisions and reduce legal risk while maintaining trust and integrity in the workplace.