Workplace Investigations in Australia: Process & Steps
Workplace investigations Australia employers run must be fair, evidence-based and free of bias, because a weak process can undo an otherwise valid outcome. The biggest mistake is deciding the result first and then collecting evidence to fit it.
This guide covers the steps, the employer duties and the worker rights, so both sides know what a proper process looks like. It sits under our workplace misconduct guide.
Workplace investigations Australia: step by step
Use this order for most conduct complaints. The Monday-morning rush is when shortcuts happen, so fix the steps before anyone is interviewed.
- Record the complaint in writing, including who raised it, the dates, the people involved and what outcome the complainant wants.
- Decide whether the matter needs a formal investigation, a quick fact-find or a mediated conversation, and note the reason for the choice.
- Appoint an investigator who is impartial, has no stake in the result and does not report directly to either person involved.
- Tell the employee in writing what is alleged and what policy or award rule it may breach, so they can prepare an answer.
- Collect evidence such as rosters, timesheets, emails, CCTV where lawful, and witness statements, and keep originals untouched.
- Interview the complainant, the respondent and the witnesses, allowing a support person, and give the respondent a chance to answer every allegation.
- Write findings that compare each allegation to the evidence on the balance of probabilities, and state the reasons for each conclusion.
- Decide the outcome, tell both parties in writing, and file the report, notes and decision securely for 7 years.
Misconduct investigation: when you need one
Not every complaint needs a full process. A misconduct investigation is for conduct that could justify discipline or dismissal.
- Allegations of bullying or harassment, because the employer must manage these as psychosocial hazards under the SafeWork NSW Code of Practice.
- Theft, fraud or misuse of company property, where the facts are disputed and the possible outcome is serious.
- A serious breach of safety rules on a construction site, such as ignoring a direction at an exclusion zone.
- Repeated refusal to follow lawful and reasonable directions, which may amount to insubordination if the direction was reasonable.
- Misuse of drugs or alcohol at work, where a policy applies and the facts need to be tested before any action.
- A complaint from a client or host employer about a labour hire worker, which the provider must investigate before acting.
Workplace investigations Australia employers must plan for
Employers carry the duty to run a fair process. Use this checklist before the first interview.
- Check the employment contract, award or enterprise agreement for any disciplinary or consultation steps that must be followed.
- Follow your own written policy, because departing from it without a reason is a common ground for a successful unfair dismissal claim.
- Keep the matter confidential, sharing details only with people who need to know, and remind witnesses not to discuss it.
- Consider whether a person should be stood down on full pay while the facts are gathered, and record the reason and the duration.
- Protect people who report concerns from victimisation, because adverse action against someone for raising a complaint can be unlawful.
- Keep time and wage records for 7 years and store the investigation file securely and separately from the payroll record.
Worker rights during a workplace misconduct investigation
If you are the person being investigated, you still have rights. Keep calm, keep records and ask questions early.
- Ask for the allegations in writing, including dates and the policy said to be breached, before you attend any interview.
- Bring a support person to meetings, such as a colleague, family member or union representative, if the process allows it.
- Answer each allegation honestly and give the investigator any evidence you have, such as messages, rosters or the names of witnesses.
- Ask to see the findings that relate to you, or a summary of them, before a final decision is made.
- Know that notice is not required for serious misconduct, but dismissal can still be challenged if the process or reason was not fair.
- Lodge any unfair dismissal application with the Fair Work Commission within 21 days of the dismissal taking effect.
Workplace investigations: outcomes and records
| Outcome | What it means | What to record |
|---|---|---|
| Allegation not substantiated | The evidence does not support the claim on the balance of probabilities | Findings and reasons, and a note to both parties |
| Substantiated, minor | Conduct occurred but a warning or training is enough | A written warning and the process followed |
| Substantiated, serious | Conduct may justify a final warning or dismissal | The valid reason, the response given and the notice paid |
| Serious misconduct | Conduct so serious that notice is not required for dismissal | The evidence and the opportunity to respond |
| Unresolved or mixed | Some points are proven and others are not | A clear finding on each allegation |
| Referral | The matter goes to SafeWork NSW, police or another regulator | The referral and the contact details |
Workplace investigations Australia: NSW and other states
The national system covers most private employers. NSW state public sector staff and some local government workers follow state rules, so check which applies.
- Most private-sector employees in NSW are covered by the Fair Work Act, so unfair dismissal claims go to the Fair Work Commission.
- NSW state public sector employees follow state conduct and disciplinary rules, which can set their own steps and timeframes.
- Employers in every state must manage psychosocial hazards, but state regulators and codes of practice differ, so name the right regulator.
- Small business employers with fewer than 15 employees can use the Small Business Fair Dismissal Code and a longer 12-month qualifying period.
- Labour hire workers are employed by the provider, so the provider leads the investigation with the host employer's cooperation.
- If you are unsure which system applies, ask the Fair Work Ombudsman on 13 13 94 before taking action.
Common mistakes to avoid
- Using an investigator who works closely with the complainant or the respondent, which creates an apparent bias that can taint the finding.
- Skipping the written allegation, so the employee first hears the detail in the meeting and has no fair chance to prepare.
- Relying on rumour or one witness without testing the evidence against rosters, messages or other records.
- Ending the process by dismissal before the response has been considered, or backdating notes to match a decision already made.
- Failing to protect the complainant from retaliation, which can create a second problem on top of the original complaint.
- Leaving the file incomplete, so the employer cannot show the steps taken if a claim is lodged within the 21-day window.
Workplace investigations Australia FAQ
What is a misconduct investigation?
It is a structured process to find out whether an employee breached a policy, contract or lawful direction. The employer states the allegation, collects evidence, hears the employee's response and records a reasoned finding before any disciplinary decision is made.
Can I bring a support person to an investigation meeting?
Usually yes. Most employers allow a colleague, family member or union representative to attend as a support person, and many awards and policies say so. The person is there to support you, not to answer for you, so ask HR before the meeting.
Can an employee be stood down during an investigation?
Sometimes. An employer may stand someone down on full pay while the facts are gathered if there is a genuine reason, such as a safety risk. Check your contract and award, and contact the Fair Work Ombudsman if you are unsure.
How long does an investigation take?
There is no fixed national timeframe, so it depends on the complexity and the number of witnesses. A fair process tells both parties the expected timeline, updates them if it changes and avoids long unexplained delays that add stress.
Next step for workplace investigations
This is general information, not legal, tax or financial advice, so check the Fair Work Ombudsman, the ATO or an employment lawyer for your situation. If you are a host employer who wants screened, inducted staff and a clear process for site conduct, visit our host employer labour hire page to talk to us.