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Workplace investigations

HR Policies

23 May 2025 (Last updated 3 Sept 2025)

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In almost all workplaces, employee conduct might just miss the mark and in some situations might be completely “off the chart”.

In cases where conduct is an issue, employers will first need to investigate. Sometimes an investigation is prompted by an employee, a client of the employer, or something observed by the employer. This may involve misconduct, serious misconduct, or an allegation of bullying and harassment.

Investigation is a process that involves several steps before a decision must be made by the business regarding the conduct complained of and includes examining documents, data, and interviewing witnesses who saw and heard the act or behaviour.

Legislation

The Employment Relations Act 2000 (the Act) outlines that an employer should sufficiently investigate the allegations against the employee and should get as many facts together as they possibly can before taking action against the employee. Additionally, the Health and Safety at Work Act 2015 and the Privacy Act 2020 are relevant laws that influence how employers should approach workplace investigations.

Why are workplace investigations important?

Workplace investigations manage and resolve sensitive workplace issues such as misconduct, grievances and harassment. Workplace investigations help reduce the potential risk of legal claims under employment laws.

The outcome of an investigation may result in disciplinary action aimed at correcting unacceptable behaviour.

Before conducting a workplace investigation, consider the following:

  • Before starting a workplace investigation, it is essential to review and adhere to organisational policies, collective agreements (if relevant) and employment contracts.
  • You should also establish the scope and purpose of the investigation.
  • Ascertain whether there are specific procedures to be followed regarding workplace investigations, grievance management, performance management, discrimination, and harassment and establish which is the most appropriate procedure to follow.
  • If you do not have policies applicable to misconduct or investigations, use this as an opportunity to develop them.
  • The choice between formal and informal investigation procedures will depend on the investigation, its complexity, the allegations, and the number of employees involved.
  • The person tasked with the investigation must have the appropriate skills and experience
  • It is not necessary to use an independent investigator as long as the person who gathers the facts and does the investigation is unbiased.
  • Prepare an investigation plan that outlines objectives, timelines, and a list of potential witnesses and evidence.

What constitutes a fair process of investigation?

Underpinning the entire investigation process is the principles of good faith and natural justice. Fundamental to the principles of natural justice are:

  • that affected parties should be given the opportunity to be heard, and
  • that decision makers should be unbiased.

Section 103a of the Act affords the employee the right to a fair procedure, in that the employee should be:

  • informed they are being investigated; and be provided with a reasonable time to prepare and gather evidence.
  • advised there is an investigation when the employer is confident there is an issue to address, and that there is sufficient evidence to prove there is an issue.
  • provided with a reasonable opportunity to respond.
  • given fair treatment in terms of which the employer must consider any explanations by the employee before reaching a decision.

During the process the employee should be allowed a support person.

Ensure that the investigation is balanced

Besides the formal investigation process that the employer will need to follow, they should keep the balance between:

  • properly advising the employee of a concern or an allegation against them, and
  • unnecessarily causing stress or anxiety to an employee where there may not be an issue to address.

Gathering evidence

Gathering evidence is an important part of workplace investigations.

  • Any person who has relevant information or material to the matter being investigated should be interviewed and their written statements collected.
  • If the employee under investigation mentions someone as a witness to a particular incident, or asks for a particular person to be interviewed, the investigator should interview such person and collect their written statement.
  • External individuals should also be interviewed (ex-employees, customers etc) if they are witnesses to the allegations against the employee.
  • Any relevant documentation or data should be collected.

It is important that any evidence that will be relied upon to make a decision, must be provided to the employee before a decision is reached. In this regard, the employee must be given a reasonable opportunity to consider the evidence, seek legal advice and be allowed to provide a response to such evidence.

Closing the investigation

Once all the evidence has been gathered, create opportunities for all involved parties to sit together and present their evidence. You should also ensure the parties have an opportunity to be heard and respond to allegations. The interview should be conducted in a safe and non-confrontational environment. Review all the evidence and documentation you have access to in a fair and transparent manner.

Once the investigation is complete, clearly communicate the outcome to involved parties. If there is disciplinary action to be taken, it should be done in line with the company's policies and procedures.

Do I need an external independent investigator?

The lengthy and complex process of investigations is the reason some employers elect to outsource the investigation. There is no right or wrong answer as to whether an independent investigator should be used, but generally the person doing the information gathering should be neutral and not impacted by the decision.

For many employers faced with serious allegations in the workplace, the time, resourcing, and expertise required to undertake a fair investigation is beyond what they can provide, and they are wise to engage an external investigator. For example, where an employer has been accused of bullying it will likely be an independent party that makes recommendations to the business based on evidence from an investigation.

However, if the employer decides to use an external independent investigator, they should make sure that they are engaging a suitably qualified and experienced investigator.

Create fair workplaces with Peninsula

Conducting a proper investigation into workplace misconduct can have positive consequences to the business. The process assists in correcting unwanted behaviour in the workplace and further places the business in the best position to defend any personal grievance claims should they arise. Peninsula can assist you in conducting workplace investigations or understanding the formal disciplinary process. Contact to learn more.

This article is for general information purposes only and does not constitute as business or legal advice and should not be relied upon as such. It does not take into consideration your specific business, industry or circumstances. You should seek legal or other professional advice regarding matters as they relate to you or your business. To the maximum extent permitted by law, Peninsula Group disclaim all liability for any errors or omissions contained in this information or any failure to update or correct this information. It is your responsibility to assess and verify the accuracy, completeness, and reliability of the information in this article.

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