AUSTRALIA Trends and Developments Contributed by: Kathy Dalton, Jane Wright, Lauren Barel and Ena Stojkovic, Workdynamic Australia
There is no doubt that the frequency and complexity of workplace investigations are on the rise in Australia. Once viewed primarily as an HR‑managed response to individual grievances, investigations have evolved into a strategic legal, compliance and risk‑management function. This shift reflects several developments in the workplace and workforce landscape, including: • the expansion of positive legal duties requiring employers to prevent psychosocial risks such as bullying, discrimination and sexual harassment; • heightened regulatory and public scrutiny of employers’ responses to workplace conduct con - cerns; and • the growing and significant consequences of mishandling an investigation, including exposure to legal claims such as unfair dismissal and general protections, reputational damage and regulatory involvement. In light of the impacts of these emerging trends, employers increasingly require skilled investigation support, whether internal or external, to conduct effective and legally defensible investigations. Rise of Complaints and Perception of Bias The landscape of internal complaints is changing dramatically. There is an increasing level of sophis - tication among workers regarding their workplace rights, willingness to raise concerns and expectation that employers will conduct skilled, independent and impartial investigations, free from perceptions of inter - nal bias. This trend is not limited to the general employee cohort. Complaints involving senior managers, execu - tives and boards are becoming more common, par - ticularly those involving conflicts at leadership level or alleged misconduct by senior figures. These matters often attract media attention and public interest, fur - ther increasing organisational and reputational risk. Historically, poor behaviour at senior levels was more likely to be minimised or managed informally; how - ever, there is now a clear shift towards transparency, accountability and a structured investigative response.
In this environment, even a remote or unfounded per - ception of bias can undermine confidence in the pro - cess. Employers are therefore increasingly recognis - ing the importance of ensuring that investigations are conducted with the appropriate skill, impartiality and independence to withstand scrutiny. Spotlight on Litigation Workplace investigations are featuring more promi - nently in legal disputes, particularly unfair dismissal and general protections claims, as well as claims relat - ed to bullying, sexual harassment and discrimination. In legal claims, such as unfair dismissals, the Fair Work Commission (FWC) is examining investigative processes closely to determine whether employers acted fairly, reasonably and lawfully when respond - ing to alleged misconduct. The outcome in such cases may turn on whether the employer responded appro - priately to allegations of misconduct, conducted a procedurally fair investigation, and managed issues such as confidentiality and legal privilege effectively. A poorly conducted investigation has the potential to invalidate subsequent employer disciplinary and risk management action. Some recent cases highlight how the FWC has scruti - nised investigation processes by employers. Y v Hai Di Lao Melbourne Proprietary Limited [2024] FWC 3313 This unfair dismissal case involved a part-time chef working at a Melbourne restaurant who was dismissed following an internal investigation that substantiated a range of allegations of bullying behaviour. The employer relied on the investigation findings to dismiss the employee for engaging in serious miscon - duct. The employee challenged the dismissal. In considering whether the dismissal was unfair, the FWC examined the investigation’s findings and con - cluded that the findings were flawed, including that: • only one of the four allegations against the chef amounted to misconduct – however, this conduct on its own was not a valid reason for dismissal;
31 CHAMBERS.COM
Powered by FlippingBook