When should a company hire an external investigator?

Companies should hire external investigators when there is a potential conflict of interest, when allegations involve senior leadership, or when the HR team lacks the specific capacity or expertise to handle complex matters like sexual harassment.

What constitutes procedural fairness in a workplace investigation?

Procedural fairness requires that the investigation is conducted without bias, that the respondent is fully informed of the allegations against them, and that they are given a reasonable opportunity to respond to the evidence.

Do private investigators need a license in Victoria?

Yes. In Victoria, individuals conducting private investigations must hold a valid license under the Private Security Act 2004. Using an unlicensed investigator can render evidence inadmissible.

Responding To A Workplace Allegation? Considerations For Conducting Workplace Investigations.

How will your company respond when a workplace allegation lands on your desk?

With the recent increase in media coverage regarding sexual harassment and the new “Positive Duty” laws in Australia, employees are more empowered than ever to report workplace abuse. While some companies hesitate to investigate unless forced by legal threats, smart organizations recognize that a prompt, thorough investigation protects both the business and its people.

This guide provides a roadmap for Australian employers on how to conduct a workplace investigation that stands up to scrutiny.

1. Understand Your Legal Obligations

Before you launch an investigation, you must understand why you are doing it. In Australia, failing to investigate a credible complaint can lead to significant liability.

Common triggers include:

Sexual Harassment: Under the Sex Discrimination Act, employers have a positive duty to eliminate harassment. Investigating complaints is a core part of this duty.
Bullying: Under the Fair Work Act, bullying is a health and safety risk. Employers must investigate to ensure a safe workplace.
Fraud or Theft: Breaches of employment contracts or fiduciary duties require factual proof before termination can be considered.

2. Assess Risks and Resources

Before interviewing witnesses, gauge your internal capabilities. Ask yourself:

Capability: Does our HR team have the specific training to conduct a procedurally fair investigation?
Bias: Is the accused a senior executive? Can an internal HR manager investigate their boss without perceived bias?
Resources: Do we have the time to dedicate to this, or will a delay expose us to further risk?

If you lack the resources or independence, engaging an external investigator is often the safest legal route.

3. Define the Scope and Objectives

Scope creep is the enemy of a good investigation. Define exactly what you are investigating before you start. Your Terms of Reference should answer:

What specifically is alleged to have happened?
Who are the relevant parties (complainant, respondent, witnesses)?
When and where did the events occur?
Which policies or laws may have been breached?

The Purpose: Is this investigation solely for fact-finding, or is it to determine a breach of policy? Clarifying this early prevents confusion later.

4. Internal vs. External Investigators

Deciding who will conduct the investigation is a critical strategic decision.

Internal Investigation

Best for minor policy breaches, interpersonal conflict, or low-risk performance issues. It is cost-effective but carries a risk of perceived bias.

External Investigation

Best for:

Sexual harassment or discrimination claims.
Allegations against senior management.
Complex fraud or theft.
Situations where the parties are highly litigious.

Note on Licensing: In Victoria and NSW, private investigators must be licensed to ensure evidence is admissible. This applies regardless of location. Whether you are in a major city or a regional hub, you must ensure your external investigator holds a valid Master License (CAPI).

5. Preserving Evidence and Procedural Fairness

Once the investigation begins, your priority is preserving facts while treating everyone fairly.

Procedural Fairness: You must give the respondent a chance to reply to the specific allegations against them before any decision is made.
Confidentiality: Remind all parties that the investigation is confidential to protect the integrity of the evidence.
Evidence Gathering: Secure emails, CCTV, and digital logs immediately.

Conclusion

A workplace allegation is a stress test for your company culture. Handled well, it demonstrates that you value safety and integrity. Handled poorly, it can lead to unfair dismissal claims and reputational damage.

Need Expert Help?

Jolasers has been conducting professional workplace investigations in Melbourne and Regional Victoria for over 16 years.

Telephone: 0418 101 164 (Stephen Oliver)

Call Now: 0418 101 164

Common Questions

When should we use an external investigator?

You should engage an external investigator if there is a conflict of interest, if the allegation involves senior staff, or if the matter is high-risk (e.g., sexual harassment).

What is procedural fairness?

Procedural fairness (natural justice) means the accused person must know the allegations against them and be given a fair opportunity to respond before a decision is made.

Are investigators licensed?

Yes. In Victoria, private investigators conducting factual investigations must hold a Private Security Individual License (Investigator) issued by the Licensing & Regulation Division (LRD).