For employers
Workplace investigations: how to run one that holds up, and when to bring in a lawyer
A complaint has come in, or you have found something that looks like misconduct, and someone has to work out what happened. How you do that decides whether the outcome survives a Commission or court. Investigations are not about proving guilt beyond doubt. They are about a fair process leading to a reasonable conclusion, documented well enough that a stranger can follow it. This page sets out what fair looks like, where employers go wrong, and when the investigation should be run by someone outside the business.
Updated . General information, not legal advice.
Time limits that apply
| What | Limit | Source |
|---|---|---|
| If the outcome is a dismissal, the employee's window to claim | 21 days from the dismissal for unfair dismissal or general protections | Fair Work Act ss 394(2), 366 |
Do you need a lawyer for this?
Advice usually pays for itself when
- The allegations involve sexual harassment, serious safety breaches, fraud, or conduct by a senior person, where the stakes and the scrutiny are high.
- The person under investigation has already lodged a complaint of their own, taken leave, or raised a safety issue, so any outcome may be met with a general protections claim.
- You want the investigation to attract legal professional privilege, which broadly requires it to be commissioned through a lawyer for the purpose of legal advice.
- The business is small, the decision-maker knows everyone involved, and there is no one impartial to run it.
The free route is usually enough when
- A contained, low-stakes matter, such as a single policy breach, where the facts are largely agreed and the likely outcome is a warning.
- You have an HR function with investigation experience and a manager who was not involved to make the decision.
What does a fair investigation look like?
The allegations are put to the person in writing, with enough detail that they know what is being alleged and when. They are given a reasonable time and a genuine opportunity to respond, in writing or at a meeting, with a support person if they want one. Witnesses are interviewed and their accounts recorded. The investigator weighs the evidence and reaches findings on the balance of probabilities, with more care where the allegation is serious. The findings are separate from the decision about what to do, and ideally the decision is made by someone who did not run the investigation. Every step is dated and documented. None of that is exotic. It is skipped constantly, usually under time pressure.
Where do investigations most often go wrong?
Deciding the outcome before the response is heard, so the meeting is a formality. Putting vague allegations that the person cannot answer. Using a decision-maker who is also the complainant or a witness. Refusing a support person, or treating the support person as an advocate to be argued with. Failing to interview the obvious witnesses. Suspending without pay, which most contracts and awards do not allow. Taking so long that the delay itself becomes unfair. And the most common of all, having no written record of any of it. The Commission's unfair dismissal test asks whether the employee was told the reason, had a chance to respond, and was warned. An investigation that skips those steps fails the test regardless of what actually happened.
Should the employee be suspended?
Sometimes, for serious allegations where the person's presence would compromise the investigation or the safety of others. Suspension should almost always be on full pay unless a contract, award or agreement clearly permits otherwise. It should be for the shortest period the investigation genuinely needs, and it should be communicated in writing as a neutral step rather than a finding. Directing someone to stay away from the workplace while continuing to pay them is generally within an employer's power. Stopping their pay is not, and it converts a process question into an underpayment claim on top of everything else.
When should the investigation be external?
When no one inside the business is impartial, which is the usual position in a small business. When the allegations are serious enough that the findings may be challenged in a Commission, a court or by a regulator. When the person accused is senior. When the complainant or the respondent has already signalled a claim. And when privilege matters, because an investigation commissioned by a lawyer for the purpose of giving legal advice can attract legal professional privilege over the report, whereas an HR-led investigation generally cannot. External investigators cost money. A dismissal that fails for want of process costs more, and a harassment matter mishandled costs more again.
When does a lawyer pay for itself?
Before the investigation starts, if the matter is serious, because the terms of reference, the allegations letter and the question of privilege are set at the beginning and cannot be fixed later. At the decision stage, when the findings are in and the question is whether dismissal is proportionate and defensible. And whenever the respondent is represented or has lodged a claim of their own. Liquid Employment Lawyers is FairWork Mate's paid legal partner for employers in these situations. It is an Australian employment law firm, not a free government service, and it explains scope and fees before you commit. For a contained matter with an impartial internal decision-maker, the free tools cover the process.
What is the free route for employers?
The Fair Work Ombudsman on 13 13 94 explains employer obligations around discipline and dismissal, free. FairWork Mate's workplace investigation rights tool sets out the process from the employee's side, which is a useful mirror for an employer designing one, and the psychosocial hazard checker covers the safety dimension where bullying or harassment is alleged. Free general information, not legal advice. FairWork Mate is not affiliated with the Fair Work Commission or the Ombudsman.
Free FairWork Mate tools for this
Talk to Liquid Employment Lawyers about this
Share a few details and their team will be in touch to talk it through. No obligation, and you decide whether to go further after that first conversation.
Liquid Employment Lawyers is an Australian employment law firm and FairWork Mate's paid referral partner, not free Fair Work advice. They discuss scope and any fees with you directly. FairWork Mate is not affiliated with the Fair Work Commission or the Fair Work Ombudsman. For free general guidance, use the tools above or call the Fair Work Ombudsman on 13 13 94.
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Common questions
Does the employee have a right to a support person?
The unfair dismissal test asks whether a support person was unreasonably refused at discussions relating to dismissal, so refusing one is a mistake. A support person is there to support, not to advocate, and the employee should be told that in the invitation.
Do I have to prove the misconduct happened?
The standard is the balance of probabilities, applied with more care for serious allegations. For a small business employer relying on the Small Business Fair Dismissal Code, the question is whether you believed on reasonable grounds, after some investigation, that the conduct occurred.
Can the employee see the witness statements?
Fairness usually requires that the substance of the evidence against them is put to them so they can respond. It does not always require handing over every document. A lawyer can advise on what must be disclosed in a particular matter.
Is Liquid Employment Lawyers free?
No. It is an Australian employment law firm and FairWork Mate's paid referral partner. Enquiring is free and there is no obligation. The Fair Work Ombudsman on 13 13 94 provides free information to employers.
Official sources
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General information and estimates only — not legal, financial or tax advice. Always check your specific award, agreement or contract, or a qualified professional, before you rely on the result.
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