Workplace Investigations
Workplace Investigations for Employers, Including Assistance as the Independent Investigator
At MV Law, we have significant expertise in advising on and conducting workplace investigations across both public and private sectors. This includes investigations involving the APS and ACTPS Codes of Conduct for government employees, as well as matters falling under various state and territory Reportable Conduct Schemes.
For employers, when allegations of misconduct arise, it’s often necessary to undertake a formal investigation to establish the facts. Even in seemingly straightforward cases, workplace investigations involve legal and procedural complexities, and missteps can have serious consequences — especially if the outcome informs disciplinary action. Engaging legal advice early not only helps ensure the investigation is conducted properly but may also provide the benefit of legal professional privilege, which can be vital in protecting your position if a dispute arises.
We offer a full range of support, including advising on investigations conducted internally, carrying out independent investigations on your behalf, and delivering training to your staff on how to conduct effective and legally sound workplace investigations.
Need help with a legal matter?
How do we conduct a fair and legally compliant investigation?
Employers should always conduct an investigation prior to taking any adverse action against an employee because of conduct the employee has been accused of. The conduct to be investigated could be misconduct (such as theft, fraud or dishonesty), breaches of policy, or other workplace concerns including safety breaches, discriminatory or bullying behaviour or failing to follow a lawful and reasonable direction.
There is generally no one statutory regime for conducting private sector workplace investigations, but an investigation must be consistent with applicable laws (e.g. the Fair Work Act 2009 (Cth)), enterprise agreements, contracts, and any binding organisational policies or procedures.
Generally, a workplace investigator can be an internal staff member who has received appropriate training, a lawyer or law firm engaged by the employer, or an external investigator from a specialist workplace investigations firm. The investigator must be impartial, objective, and free from bias or conflicts of interest—whether actual, perceived, or potential.
An employer generally has the right to suspend an employee on full pay for a limited period while a workplace investigation into alleged misconduct is conducted, provided that the suspension is based on a lawful and reasonable direction. Whether the employer can also withhold pay for the period of the suspension depends on the terms of the employee’s contract of employment, award or enterprise agreement.
During a workplace investigation, employers should collect a variety of evidence to ensure that decisions are made on a fair and substantiated basis. This may include witness evidence, documentary evidence, digital and electronic evidence and expert and forensic evidence.
If the workplace investigation is not conducted fairly, any decision made on the basis of the investigation may be challenged. For example, a dismissed employee may commence proceedings for unfair dismissal. The employer also risks being in breach of their primary duty of care under the relevant work health and safety legislation to protect the mental health of their workforce.
If the alleged behaviour warrants termination and the allegations are substantiated, the employer may terminate the employee’s employment at the conclusion of the investigation.
Employers should consider seeking legal advice at several key stages during a workplace investigation under Australian employment law. Legal advice is particularly valuable where the investigation involves high organisational impact, significant reputational risk, allegations of serious misconduct, potential regulatory involvement, or is high risk for litigation. In such circumstances, early legal advice can assist in strategy development, risk management, ensuring a robust process, and the potential for conducting investigations under legal professional privilege.
Be empowered with workplace and employment solutions from our expert team.
"*" indicates required fields