Do I Need an Independent Workplace Investigator?

Whenever a manager receives a verbal or formal written complaint, there is a range of thought processes, lines of questioning, evidence and facts that need to be collected.

Whether an investigation is conducted internally or externally, it must adhere to the principles of procedural fairness (natural justice), confidentiality, evidence-based decision making, organisational policies and applicable workplace laws. These standards help ensure a fair process for everyone involved and allow an organisation to respond with appropriate action.

While many organisations have experienced HR teams, there are situations where engaging an independent workplace investigator is the most appropriate way to manage legal risk, protect employee wellbeing and maintain confidence in the investigation process.

Why are independent workplace investigations important?

Workplace complaints involving bullying, discrimination, sexual harassment, misconduct, victimisation or other inappropriate workplace behaviour can expose organisations to significant legal, financial and reputational risks.

Employers also have obligations under the Fair Work Act 2009, work health and safety (WHS) legislation, anti-discrimination laws and, where relevant, the positive duty introduced through the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 to respond appropriately to workplace concerns.

A poorly managed investigation can increase the risk of psychological harm, regulatory scrutiny and future legal claims.

An independent workplace investigation demonstrates that an employer has taken allegations seriously, followed a fair process and made decisions based on evidence rather than assumptions or workplace politics.

Internal investigator or independent investigator?

Conducting an investigation internally can have some advantages. An internal investigator understands the organisation's culture, knows the relevant policies and may be well placed to implement recommendations arising from the investigation.

However, internal workplace investigations are more likely to attract allegations of perceived bias, conflicts of interest or a lack of procedural fairness, particularly where senior employees or managers are involved.

Where the integrity of the investigation could reasonably be questioned, an independent investigator often provides the strongest protection for both the organisation and the people involved.

Five reasons to hire an independent workplace investigator

1. Lack of internal expertise or resources

Many HR professionals are highly experienced in employee relations but have not received specialist training in workplace investigations.

If your organisation does not have staff with investigation and report-writing expertise, or it is not practical to divert key personnel from their normal responsibilities, engaging an independent investigator helps ensure the matter is handled professionally and thoroughly.

2. Objectivity and independence

Internal investigations can be compromised by actual or perceived conflicts of interest.

This is particularly important where the complaint involves managers, executives, HR personnel or employees who have existing working relationships with the investigator.

An independent workplace investigator brings impartiality, applies procedural fairness without bias and increases employee confidence in the investigation process.

3. Serious allegations involving senior personnel

Where allegations involve a CEO, executive, board member or other senior leader, independence becomes even more important.

Using an external investigator provides transparency and credibility while helping protect the integrity of both the investigation and any subsequent decisions.

4. Managing legal, financial and reputational risk

Investigations are often conducted in circumstances where employers may later need to justify their actions before regulators, tribunals, insurers or courts.

Poorly handled investigations can contribute to:

• unfair dismissal claims

• general protections claims

• discrimination complaints

• workers compensation claims

• psychosocial injury claims

• reputational damage

An experienced independent investigator follows recognised investigation methodologies, documents evidence appropriately and prepares defensible findings based on the available facts.

5. Third-party scrutiny or complex investigations

Some investigations may later be reviewed by external parties including:

• the Fair Work Commission

• the Fair Work Ombudsman

• the Australian Human Rights Commission

• state or territory WHS regulators

• workers compensation insurers

• legal representatives

Where this level of scrutiny is possible, an independent investigation can strengthen confidence that the process has been conducted fairly, consistently and in accordance with legal obligations.

What does an independent workplace investigator do?

An independent workplace investigator typically manages the investigation from beginning to end, including:

• defining the scope of the investigation

• identifying relevant legislation, policies and issues

• interviewing witnesses

• gathering and assessing evidence

• preparing an evidence-based investigation report

• making factual findings (not disciplinary decisions)

• providing practical recommendations where appropriate

A workplace investigator determines what occurred based on the available evidence. Decisions about disciplinary action remain the responsibility of the employer.

How Workplace Plus can help

Workplace Plus provides professional, confidential and independent workplace investigations tailored to your organisation.

Our methodology includes:

• initial scoping and risk assessment

• fact-finding and evidence gathering

• witness interviews

• review of workplace policies and documentation

• comprehensive evidence-based investigation reports

• post-investigation advice and recommendations

Our senior consultants have extensive experience conducting workplace investigations across healthcare, disability, community services, aged care, not-for-profit organisations, local government and the private sector.

Where appropriate, investigations can also be conducted in conjunction with legal advisers to assist organisations seeking legal professional privilege.

You may also find these resources helpful:

• Six Issues Requiring an Independent Workplace Investigation >

• Procedural Fairness in Workplace Investigations >

• Positive Duty under Respect@Work >

• Building Psychologically Safe Workplaces >

Frequently asked questions

When should an employer use an independent workplace investigator?

An independent investigator is often appropriate where allegations involve bullying, sexual harassment, discrimination, fraud, serious misconduct, senior employees or situations where impartiality could reasonably be questioned.

Can HR conduct a workplace investigation?

Yes. Many organisations conduct investigations internally. However, complex or high-risk matters may be better managed by an independent investigator to ensure objectivity and reduce legal and reputational risk.

What laws apply to workplace investigations in Australia?

Depending on the circumstances, workplace investigations may involve obligations under the Fair Work Act 2009, work health and safety legislation, anti-discrimination legislation and an organisation's own workplace policies and procedures.

Does an investigator decide disciplinary outcomes?

No. An investigator's role is to establish the facts based on the available evidence. Decisions about disciplinary action remain the responsibility of the employer.

Serious workplace complaints require a fair, timely and impartial response. If you need independent workplace investigation support, contact Workplace Plus to discuss your situation in confidence.

For support managing workplace conflict, contact us today.