AUSTRALIA Trends and Developments Contributed by: Kathy Dalton, Jane Wright, Lauren Barel and Ena Stojkovic, Workdynamic Australia
• the investigator failed to take proactive steps to verify contested evidence from the chef; and • the investigator failed to properly consider the workplace context – ie, a restaurant – in which alleged misconduct occurred, which is critical in assessing whether substantiated conduct amounts to misconduct. Accordingly, the FWC found the dismissal harsh, unjust and unreasonable. This case illustrates the benefits of appointing skilled and experienced inves - tigators who are able to appropriately assess evidence and the nuance of context to ensure robust findings. Sewell v dnata Airport Services [2025] FWC 2823 This decision demonstrates the risks arising from inadequate support for complainants, even where allegations are ultimately unsubstantiated. The com - plainant alleged sexual harassment and participated in an internal investigation. Although the allegations were not substantiated, the FWC found that flaws in the investigative process contributed to her feeling compelled to resign due to feeling unsupported and exposed to ongoing psychological risk. The FWC identified several deficiencies in the employ - er’s internal investigation, including: • failing to interview employees that had been identi - fied as relevant witnesses by the complainant; • concluding that allegations could not be substanti - ated because the complainant’s and respondent’s accounts differed – in this regard, the FWC noted that allegations that occur without witnesses can still be substantiated; • inconsistent communication with the parties, including providing the respondent with a written outcome while informing the complainant verbally, and failing to provide the complainant with the written outcome when she first made such request; and • inadequate attention to the complainant’s concerns about working alongside the respondent. Shaun Turner v Darebin City Council [2025] FWC 1763 This unfair dismissal case involved a council work - er who was dismissed after his employer attributed
alleged discriminatory comments to him in a work - place investigation. The FWC identified several inves - tigative shortcomings, including failure to properly interpret evidence, insufficient consideration of tone and context, and reliance on prior warnings and train - ing that were not adequately supported. The FWC ultimately found the dismissal harsh, taking into account the context in which the comments were made and the employee’s personal circumstances. The case highlights how a poorly managed internal workplace investigation can result in: • significant reputational damage for an employer and its HR team, as many deficiencies of the coun - cil’s workplace investigation are now a matter of public record; and • significant and lengthy legal exposure, in that the employer must now wait to see whether the FWC will order the employee’s reinstatement or award compensation. Investigation Process, Approaches and Technology Person-centred and trauma-informed approach to investigations Procedural fairness remains at the core of any effec - tive workplace investigation. However, investigative practice in Australia is demonstrating a clear shift towards investigation approaches that prioritise psy - chological safety, cultural awareness and sensitivity to trauma, particularly in matters related to sexual har - assment, discrimination and bullying. This shift is influenced by several developments, including: • the expansion of positive duties on employers to identify and manage psychosocial hazards under safety, anti-discrimination and sexual harassment laws; • growing concern among employees about the psy - chological impact of participating in investigative processes; and • increased regulatory and policy guidance encour - aging employers to adopt safe, respectful and person-centred complaint-handling models.
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