AUSTRALIA Law and Practice Contributed by: Kathy Dalton, Jonathan Wright, Gella Rips and Mirna Oghanna, Workdynamic Australia
4. Protection of the Parties During an HR Internal Investigation 4.1 Protection of the Reporter When a concern or complaint is raised, employers should assess whether the reporter’s identity needs to be protected and whether there is any risk: • to the reporter’s or others’ psychological or physi - cal safety; • of retaliation, victimisation or other detriment; • of further misconduct; and • of compromised evidence. The key laws that employers need to consider when assessing these risks include: • WHS laws, which require employers to provide a safe workplace; • whistle-blower laws which require protection of the reporter’s identity (subject to limited exceptions) and prevention of retaliation or detriment; • federal and state anti-victimisation laws which pro - hibit victimisation of a person because they made or intended to make a complaint; and • the FW Act, which prohibits taking adverse action against an employee because they have made a complaint or are the subject of a complaint. Possible protective measures include: • anonymising the complaint and taking steps to protect the reporter’s identity (particularly for whistle-blower matters); • adjusting reporting lines and/or implementing remote-working arrangements to limit interaction between the reporter and the respondent or other parties; • suspending the respondent for the duration of the investigation (where lawful and appropriate – see 4.3 Measures Against the Respondent for further detail); • issuing lawful and reasonable directions in relation to confidentiality and co-operation with the inves - tigation; • issuing clear instructions to relevant staff to pre - vent gossip, harassment or retaliation; and
3.11 Other Fact-Finding It is rare for an investigation to be limited to fact-find - ing from interviews only. Investigators use a range of other evidence‑gathering and preservation steps, provided they are lawful, pro - portionate and procedurally fair. Other fact-finding measures often include: • reviewing documentary materials such as organisational charts, emails, written complaints, instant messages, photos, policies, procedures, timesheets and leave records; • reviewing electronic evidence such as CCTV foot - age, system logs and access records, and swipe card data; and • physical inspection of work locations, safety condi - tions, property and equipment. Some of these measures may require compliance with legislation (such as surveillance and privacy laws), the investigative framework, the terms of the contract of employment or engagement and/or consent. Where documentary evidence is obtained, the inves - tigator should consider where the document needs to be authenticated to confirm its legitimacy. Evidence Preservation Measures Early steps may be required to prevent loss or destruc - tion of evidence, particularly where litigation, regula - tory reporting or serious misconduct is foreseeable. This may include: • issuing document‑retention or “hold” notices; • suspending routine data deletion processes; • securing devices, files or access rights; and • limiting contact between parties to prevent interfer - ence.
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