The New Legal Landscape: Positive Duty and Your Workplace
Australian workplaces are facing a significant shift in legal obligations with the introduction of the Positive Duty amendments to the Sex Discrimination Act. These changes require employers to take proactive measures to eliminate discrimination, sexual harassment, and gender-based violence in the workplace—not just respond after incidents occur.
This legislative evolution recognises a sobering reality: workplace boundaries are increasingly porous, with domestic violence frequently spilling into professional environments. Perpetrators may stalk partners at their workplace, send harassing emails to work accounts, or use workplace resources to monitor and control victims.
The Australian Human Rights Commission reports that domestic violence costs Australian businesses over $2 billion annually in lost productivity, absenteeism, and staff turnover. Beyond these financial implications, employers face serious legal consequences for failing to provide a safe workplace.
Creating a safe environment means having a robust reporting and investigation process. Without clear protocols for addressing domestic violence that affects the workplace, employers cannot fulfil their duty of care or comply with workplace health and safety obligations.
When Domestic Violence Enters the Workplace
Domestic violence rarely remains confined to the home. Research shows that 75% of victims experience harassment from abusive partners while at work. This can manifest as:
- Unwanted visits or stalking at the workplace
- Harassing phone calls or emails sent to work accounts
- Sabotage that prevents victims from attending work
- Threats made to colleagues or clients
- Physical violence occurring on company premises
Under the Work Health and Safety Act, Australian employers must ensure the health and safety of workers “so far as is reasonably practicable.” This obligation extends to addressing risks arising from domestic violence when they impact the workplace.
Legal Obligations for Australian Employers
The new Positive Duty requirements mean Australian employers must:
- Implement preventative measures against sexual harassment and gender-based violence
- Establish clear reporting mechanisms for staff experiencing domestic violence
- Develop response protocols for when domestic violence affects the workplace
- Provide appropriate training for managers and staff
- Conduct thorough investigations when incidents are reported
- Maintain confidentiality while ensuring workplace safety
Failure to meet these obligations can result in regulatory intervention, financial penalties, and significant reputational damage. More importantly, it leaves vulnerable staff without the protection they deserve.
The Role of the Bystander in Workplace Investigations
In workplace investigations, the ‘bystander’ is the witness. Just as the ‘Be There’ app initiative helped people intervene in public spaces, obtaining accurate, sensitive witness statements is the cornerstone of a fair workplace investigation.
Witnesses to workplace incidents or concerning behaviours play a crucial role in establishing facts and context. However, obtaining reliable witness testimony requires skill, sensitivity, and proper documentation.
The Challenges of Witness Statements in Sensitive Investigations
When investigating matters involving domestic violence or misconduct in the workplace, witnesses often face significant barriers to providing information:
- Fear of retaliation from the alleged perpetrator
- Concerns about confidentiality and privacy
- Uncertainty about what constitutes relevant information
- Emotional distress from witnessing traumatic events
- Reluctance to become involved in workplace disputes
Professional investigators understand these challenges and employ techniques to overcome them while maintaining the integrity of the investigation process.
Best Practices for Gathering Witness Information
Effective workplace investigations follow established protocols for gathering witness statements:
What to Do
- Conduct interviews in private, neutral settings
- Clearly explain confidentiality parameters
- Use open-ended questions to elicit detailed responses
- Document statements thoroughly and accurately
- Allow witnesses to review their statements
What to Avoid
- Leading questions that suggest answers
- Promising absolute confidentiality
- Sharing details from other witness statements
- Rushing interviews due to time constraints
- Allowing witnesses to discuss testimony with others
Professional investigators bring objectivity and expertise to this process, ensuring that witness statements are gathered in a manner that protects both the integrity of the investigation and the wellbeing of all parties involved.
Did you know? Research shows that witnesses recall approximately 50% more details when interviewed by trained investigators using cognitive interviewing techniques compared to standard questioning methods.
By implementing proper witness interview protocols, employers demonstrate their commitment to thorough and fair investigations while fulfilling their duty of care obligations.
Why Independent Investigation is Essential for Workplace Safety
When domestic violence or misconduct affects your workplace, the facts matter. You cannot keep staff safe if you don’t know what’s happening, who’s involved, and what risks exist. This is where independent investigation becomes crucial.
The Limitations of Internal Investigations
Many organisations attempt to handle sensitive investigations internally, often through HR departments. While well-intentioned, this approach presents significant challenges:
Challenges of Internal Investigations
- Perceived bias and conflicts of interest
- Limited expertise in forensic interviewing techniques
- Insufficient resources for thorough investigation
- Potential legal vulnerabilities from procedural errors
- Difficulty maintaining confidentiality in close workplace environments
Benefits of Independent Investigations
- Impartiality and objectivity throughout the process
- Specialised expertise in sensitive investigations
- Advanced interviewing and evidence-gathering techniques
- Legally defensible documentation and reporting
- Enhanced confidentiality and witness protection
When domestic violence intersects with workplace safety, the complexity increases exponentially. Professional investigators bring specialised knowledge of both workplace dynamics and domestic violence patterns that internal teams typically lack.
The Professional Investigation Advantage
Jolasers provides the factual certainty required to manage sensitive cases involving violence, aggression, or sexual harassment. Our approach delivers:
- Forensic Precision: Methodical evidence collection and documentation that stands up to legal scrutiny
- Trauma-Informed Practices: Interviewing techniques that gather accurate information while minimising additional trauma
- Risk Assessment: Identification of ongoing safety concerns requiring immediate intervention
- Legal Compliance: Investigations that fulfil regulatory requirements and duty of care obligations
- Actionable Recommendations: Clear guidance on appropriate responses based on factual findings
“Independent investigations provide the objective foundation organisations need to make difficult decisions in complex situations. When domestic violence affects the workplace, this objectivity becomes even more crucial.”
By engaging professional investigators, employers demonstrate their commitment to workplace safety while ensuring they have the factual basis needed for appropriate action.
When to Engage External Investigators
Certain situations particularly warrant independent investigation:
| Situation | Why Independent Investigation is Critical |
| Domestic violence affecting the workplace | Requires specialised knowledge of both domestic violence dynamics and workplace safety protocols |
| Allegations involving senior staff | Eliminates conflicts of interest and perception of bias |
| Potential criminal conduct | Ensures proper evidence handling and coordination with law enforcement |
| Complex cases with multiple witnesses | Benefits from advanced interviewing techniques and systematic evidence analysis |
| Situations with significant legal risk | Provides legally defensible investigation process and documentation |
When workplace safety and domestic violence intersect, the stakes are too high for anything less than thorough, professional investigation. The factual foundation provided by independent investigators enables employers to fulfil their duty of care while navigating complex legal and ethical terrain.
Taking Action: Protecting Your Staff and Your Organisation
Australian employers face dual imperatives when addressing workplace safety and domestic violence: protecting vulnerable staff and ensuring legal compliance. The new Positive Duty requirements have raised the bar for employer responsibilities, making proactive measures essential.
By implementing robust reporting mechanisms, training staff appropriately, and engaging professional investigators when needed, employers can create genuinely safer workplaces while fulfilling their legal obligations.
Remember that when domestic violence affects your workplace, the quality of your investigation directly impacts:
- The safety of affected staff members
- Your legal compliance position
- The effectiveness of your response
- Your organisation’s reputation and culture
Professional investigation services provide the expertise, objectivity, and methodological rigour needed to navigate these sensitive situations effectively.
Need expert assistance with a workplace investigation?
Jolasers Investigations provides confidential, professional investigation services for Australian workplaces dealing with domestic violence, misconduct, and safety concerns.