AUSTRALIA Law and Practice Contributed by: Kathy Dalton, Jonathan Wright, Gella Rips and Mirna Oghanna, Workdynamic Australia
Workdynamic Australia Suite 107 – 108, Level 1, 343 George Street Sydney NSW 2000 Australia Suite 3, Level 5, 461 Bourke Street Melbourne VIC 3000 Australia Tel: +61 02 8521 6486 +61 03 9642 8324 Email: kathy.dalton@workdynamic.com.au Web: www.workdynamic.com.au
1. Opening an HR Internal Investigation 1.1 Circumstances Investigations are usually triggered when an employer becomes aware of a workplace concern that raises issues of potential misconduct, safety, legal or regula - tory risk, breaches of workplace policies or the man - agement of internal or external expectations. Key considerations for determining whether formal fact‑finding is warranted and proportionate include: • the nature and seriousness of the concern; • whether there are disputed facts; • whether the concern appears to be frivolous, vexa - tious or malicious; • the feasibility of an investigation and its likelihood of producing reliable findings; • any legal or regulatory obligations to investigate; • internal policy or enterprise agreement require - ments; • potential legal, reputational, financial or operational risks to the employer; • risks to workers, including any safety concerns and the potential for retaliation or victimisation; • the appropriateness of alternative response options, such as mediation, or broader cultural or organisational reviews; and • how the reporter wishes the matter to be addressed.
A decision whether to investigate should be made promptly and should usually be documented. Delay is inconsistent with best practice, may create legal risk, and may be perceived as tacit acceptance of inappropriate or unlawful conduct. The decision must withstand legal and regulatory scrutiny, and should maintain employee and public confidence in the employer’s leadership. 1.2 Bases There is no specific Australian law that expressly regu - lates the circumstances in which a workplace inves - tigation must occur. However, commonly an internal investigation may be warranted to demonstrate compliance and/or mitigate risk in respect of employer obligations arising under: • whistle-blower laws; • work health and safety (WHS) laws; • employee protection laws relating to termination of employment and discrimination (including the Fair Work Act 2009 (Cth) (the “FW Act”) and relevant equal opportunity and discrimination legislation); • common law duties, such as the duty of care and the duty of procedural fairness; • individual contracts of employment, which may bind an employer to investigate if it has prescribed processes under workplace policies; • workplace policies; and
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