AUSTRALIA Law and Practice Contributed by: Kathy Dalton, Jonathan Wright, Gella Rips and Mirna Oghanna, Workdynamic Australia
• complaints are anonymous and lack sufficient credibility or detail; or • critical evidence has been lost. In other cases, the concern may fall outside the employer’s responsibility to investigate, such as in purely personal disputes. Given that the boundaries between work and personal conduct can be unclear, employers should seek legal advice where the employ - ment nexus is uncertain. Regardless of whether an investigation cannot be or should be conducted, employers should still carefully consider: • whether their legal obligations have been satisfied, including whether alternative steps are required to address identified risks or concerns; and • how the status of the matter is communicated to relevant parties in a clear, appropriate and timely manner. 1.7 Other Cases Refer to 1.1 Circumstances , 1.2 Bases and 1.6 Prohi- bition on Carrying Out an HR Internal Investigation . 2. Initial Steps 2.1 Communication to the Reporter and the Respondent Reporter Employers are generally not legally required to inform a reporter that an investigation has commenced or regarding any other information about the investiga - tion, such as the status of a matter, unless required by a workplace policy or whistle-blower laws. Similarly, there are usually no mandated or generally prescribed timeframes for doing so. In practice, reporters are informed that an investiga - tion has commenced to the extent that this can occur without compromising confidentiality or the integrity of the process. Reporters are often interviewed and required to provide further information or evidence, meaning they are notified as part of their participation in the investigation.
While the timing and extent of communication will depend on the circumstances of each matter, good practice commonly includes providing the reporter with the following information: • acknowledging receipt of the concern or com - plaint; • advising the reporter of available employee support services; • informing the reporter about whether the matter will be investigated or managed in another manner; • identifying the person responsible for managing the matter; • addressing expectations regarding confidentiality and protections against victimisation; and • providing periodic, high‑level updates on the status of the investigation, subject to confidentiality con - straints. Respondent To satisfy procedural fairness obligations, respond - ents have a right to be informed that an investigation has been commenced and of the specific allegations against them. This requirement may also arise under applicable workplace policies, enterprise agreements or legislation. Good practice usually involves notifying the respond - ent of: • the fact of the investigation, the identity of the investigator, and the allegations; • the relevant framework governing the investigation, including applicable policies and legal obligations; • expectations regarding confidentiality and non- victimisation; • available employee support services; • any entitlement to a support person or representa - tive, depending on the applicable framework; and • providing periodic, high‑level updates on the status of the investigation, subject to confidentiality con - straints. There is no prescribed timeframe governing when a respondent must be notified of allegations or required to provide a response, unless specified in legislation, a workplace policy or an industrial instrument.
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