HR Internal Investigations 2026

Definitive global law guides offering comparative analysis from top-ranked lawyers

CHAMBERS GLOBAL PRACTICE GUIDES

Definitive global law guides offering comparative analysis from top-ranked lawyers

Contributing Editor Rayan Houdrouge Walder Wyss Ltd

Global Practice Guides

HR Internal Investigations Contributing Editor Rayan Houdrouge Walder Wyss Ltd

2026

Chambers Global Practice Guides For more than 20 years, Chambers Global Guides have ranked lawyers and law firms across the world. Chambers now offer clients a new series of Global Practice Guides, which contain practical guidance on doing legal business in key jurisdictions. We use our knowledge of the world’s best lawyers to select leading law firms in each jurisdiction to write the ‘Law & Practice’ sections. In addition, the ‘Trends & Developments’ sections analyse trends and developments in local legal markets. Disclaimer: The information in this guide is provided for general reference only, not as specific legal advice. Views expressed by the authors are not necessarily the views of the law firms in which they practise. For specific legal advice, a lawyer should be consulted. Content Management Director Claire Oxborrow Content Manager Jonathan Mendelowitz Senior Content Reviewers Sally McGonigal, Ethne Withers, Deborah Sinclair, Stephen Dinkeldein, Vivienne Button and Sean Marshall Content Reviewers Lawrence Garrett, Marianne Page, Heather Palomino, Alison Moore, Adrian Ciechacki and Michael Irvine Content Coordination Manager Nancy Tsang Senior Content Coordinators Carla Cagnina and Delicia Tasinda Content Coordinator Joanna Chivers Head of Production Jasper John Production Coordinator Genevieve Sibayan

Published by Chambers and Partners 165 Fleet Street London EC4A 2AE Tel +44 20 7606 8844 Fax +44 20 7831 5662 Web www.chambers.com

Contents

INTRODUCTION Contributed by Rayan Houdrouge and Kathryn Kruglak, Walder Wyss Ltd p.5

GREECE Law and Practice p.173

Contributed by POTAMITISVEKRIS Trends and Developments p.190 Contributed by POTAMITISVEKRIS

AUSTRALIA Law and Practice p.8 Contributed by Workdynamic Australia Trends and Developments p.29 Contributed by Workdynamic Australia

INDIA Law and Practice p.195 Contributed by JSA Advocates & Solicitors Trends and Developments p.214 Contributed by JSA Advocates & Solicitors INDONESIA Law and Practice p.219 Contributed by Alizia & Partners Law Office ITALY Law and Practice p.236 Contributed by NIUS Legal and HR Solutions Trends and Developments p.252 Contributed by NIUS Legal and HR Solutions

BRAZIL Law and Practice p.36

Contributed by CGM Advogados Trends and Developments p.48 Contributed by CGM Advogados

CANADA Law and Practice p.56 Contributed by Filion Wakely Thorup Angeletti LLP Trends and Developments p.71 Contributed by Filion Wakely Thorup Angeletti LLP

CHILE Law and Practice p.77

JAPAN Law and Practice p.259 Contributed by AI-EI Law Firm

Contributed by Clyde & Co Chile Trends and Developments p.94 Contributed by Clyde & Co Chile CHINA Law and Practice p.101 Contributed by Lantai Law Firm Trends and Developments p.120 Contributed by King & Wood Mallesons FINLAND Law and Practice p.127 Contributed by Roschier Trends and Developments p.139 Contributed by Roschier FRANCE Law and Practice p.147 Contributed by Axipiter Trends and Developments p.166 Contributed by Axipiter

MEXICO Law and Practice p.271 Contributed by Martinez y de Labra Abogados Trends and Developments p.280 Contributed by De la Vega & Martínez Rojas S.C. NORWAY Law and Practice p.284 Contributed by Ro Sommernes Advokatfirma AS Trends and Developments p.301 Contributed by Ro Sommernes Advokatfirma AS

PUERTO RICO Law and Practice p.307

Contributed by Pizarro & González Trends and Developments p.320 Contributed by Pizarro & González SLOVENIA Law and Practice p.328 Contributed by Šafar & Partners

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Contents

SOUTH KOREA Law and Practice p.335 Contributed by Yulchon LLC Trends and Developments p.352 Contributed by Lee & Ko

UK Trends and Developments p.411 Contributed by CMS

USA Law and Practice p.417

Contributed by The Prinz Law Firm Trends and Developments p.437 Contributed by The Prinz Law Firm USA – DISTRICT OF COLUMBIA Law and Practice p.445 Contributed by Bertram LLP USA – NEW YORK Trends and Developments p.461 Contributed by Levy Employment Law, LLC USA – PENNSYLVANIA Trends and Developments p.468 Contributed by Ufberg & Associates, LLP

SWEDEN Law and Practice p.357 Contributed by Advokatfirman Cederquist KB Trends and Developments p.372 Contributed by Roschier

SWITZERLAND Law and Practice p.380

Contributed by Walder Wyss Ltd Trends and Developments p.394 Contributed by Binder Legal

THAILAND Law and Practice p.400

Contributed by Baker McKenzie Trends and Developments p.407 Contributed by Baker McKenzie

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INTRODUCTION

Contributed by: Rayan Houdrouge and Kathryn Kruglak, Walder Wyss Ltd

Walder Wyss Ltd is one of the most successful and fastest-growing Swiss commercial law firms. It specialises in employment, corporate, commercial, banking, finance, intellectual property, competition, dispute resolution and tax law. The firm’s clients in - clude national and international companies, publicly held corporations and family businesses, as well as public law institutions and private clients. It is a dynamic law firm with flat management structures and a team of more than 250 legal experts – all of

whom have a high level of professional qualification, international experience and excellent knowledge in many languages. Growth and a close relationship to its clients are the factors that determine its success. Walder Wyss was established in Zurich in 1972 and has since grown continuously. With offices in Zurich, Geneva, Basel, Bern, Lausanne and Lugano, the firm provides its clients with a seamless one-stop-shop, personalised and high-quality services in all language regions of Switzerland.

Contributing Editor

Co-Author

Rayan Houdrouge is a partner at Walder Wyss. He advises Swiss and multinational companies, among them disruptive technology companies, and international organisations on all employment-related matters. He has

Kathryn Kruglak is a senior associate at Walder Wyss. She advises on employment, data protection and immigration law, as well as social security and pension matters. Her areas of expertise also include

extensive experience in executive transfers, litigation, internal investigations, restructurings, business transfers and compensation packages, including for blockchain companies. He also advises individuals, especially regarding residency and philanthropic matters, and has particular expertise assisting HNWIs. Rayan studied at the University of Lausanne (lic. iur.) and the New York University School of Law (LLM, Corporate Law). He holds the Swiss Federal Certificate in Labour Law and is an accredited social security expert.

diversity, equity and inclusion, and blockchain and AI, especially regarding data protection aspects. She has particular experience in drafting employment contracts, termination agreements, personnel regulations, data protection regulations and privacy notices, conducting internal investigations, assisting international organisations and handling cross- border situations. Kathryn studied at the University of Neuchâtel (BLaw, MLaw) and King’s College London (LLM, Transnational Law).

Walder Wyss Ltd Rue du Rhône 14 1204 Geneva Switzerland Tel: +41 58 658 30 00 Email: rayan.houdrouge@walderwyss.com Web: www.walderwyss.com

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INTRODUCTION Contributed by: Rayan Houdrouge and Kathryn Kruglak, Walder Wyss Ltd

HR Internal Investigations: A General Overview An HR internal investigation is a formal inquiry con - ducted when an employer is confronted with reasons to suspect that there may have been potential viola - tions of the law or internal policies (eg, that an employ - ee is being bullied). It is an important tool that permits the employer to demonstrate that it respects its legal obligations vis-à-vis its employees. Given the large amount of time spent in the workplace and increasingly blurrier lines between the profession - al and personal, combined with the hierarchical power dynamics inherent in employment, it should come as no surprise that employers receive many complaints about potentially problematic workplace-related incidents, ranging from kindergarten-style disputes between colleagues to allegations of serious criminal violations. In recent years, there seems to have been a marked uptick in formal complaints. On the one hand, between the post-COVID-19 return to working in the same space as other people and growing societal polarisa - tion, rather than speaking with their colleagues, more employees are turning to formal complaints as a way to deal with small annoyances. On the other hand, the spotlight that social movements like #MeToo and Black Lives Matter shone on the discrimination, harassment, bullying and sexist and sexual violence experienced by many people led to more employees feeling empowered to file complaints. In light of the legal and reputational consequences for employers and the potential mental and physical health and safety risks to employees, employers need to pay special consideration to how complaints are treated and how HR investigations are conducted. In many jurisdictions, employers have certain obliga - tions to protect employees. Typically, this may include a duty to protect employees’ personality rights, including their health and safety. In some jurisdic - tions, this may be further nuanced (ie, protection for whistle-blowers, protection against certain forms of discrimination, etc). Frequently, these obligations are not codified in one place. They may have numerous sources, such as private employment law and public labour law (international and domestic). Many employ -

ers also may have internal policies with requirements that go beyond the statutory ones. In addition, adja - cent fields like data protection may come into play and rules around the use of AI are becoming increas - ingly important, given the substantial role AI now plays in internal investigations, especially at the document review stage. Often these laws and rules contain provisions (either directly or indirectly) about HR internal investigations – in particular, when to carry one out and how to do so. Concretely, this means that when an employer receives a complaint, they need to know whether it triggers a legal obligation to protect their employees and, if so, the extent of these obligations. This may encompass both protecting the employee(s) directly subject to the behaviour in question (eg, bully - ing) and protecting other employees from a potential risk of also being subject to such behaviour, as well as protecting the person against whom the complaint was made from false allegations and rumours. As HR internal investigations allow employers to establish the facts necessary to determine the veracity of the com - plaint and whether any measures need to be taken, they not only protect the person who made the com - plaint (ie, the reporter), but also the person against whom the complaint was made (ie, the respondent). Such situations may be very complicated for employ - ers, especially in the absence of specific legal provi - sions and given the need to act quickly, and they may have many legal and practical questions. Initially, an employer will need to determine whether an HR internal investigation should be opened, when to turn to external counsel, what to communicate to the different parties and/or the authorities, and when to do so, etc). Moreover, pragmatically speaking, the employer will need to determine the specifics of how the investi - gation will be conducted (eg, who actually conducts the interview, whether the interview can be conducted remotely, whether transcripts, recordings and min - utes are required, etc). For instance, in opening an HR internal investigation, employers will need to be aware of:

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INTRODUCTION Contributed by: Rayan Houdrouge and Kathryn Kruglak, Walder Wyss Ltd

• what to do when a complaint is received and/or problematic behaviour is observed, and the steps to take immediately with respect to initial commu - nications with the relevant stakeholders; • how to deal with a complaint of a criminal nature; • whether or not to conduct a full or partial investiga - tion, or indeed whether to conduct one at all; and • when to involve outside counsel in the matter. Employers also seek advice about proactive measures to take before a problem arises, such as the drafting of an internal policy related to HR internal investigations. These are not innocuous questions, as, depending on the jurisdiction, the employer inadvertently could create more obligations for itself. Against this background, this HR Internal Investiga - tions edition of Chambers’ Global Practice Guides addresses from start to finish what employers are to do when faced with such situations, with a general focus on: • when to open an HR internal investigation; • how to balance requirements to protect both the reporter and respondent, as well as other employ - ees throughout the entirety of the process; • practical advice on the carrying out of the HR inter - nal investigation; and • specific information regarding internal policies. The Guide covers multiple jurisdictions – many of which do not have specific statutes governing inter - nal investigations, and which may rely on case law or internal policy – each with very different rules and practices when it comes to procedures and the pro - tection of employees. It is therefore divided into eight general sections, in which contributors can write freely about the laws and practices relevant in their jurisdic - tion. More specifically, procedural requirements in different jurisdictions are examined, along with the standard of proof. The role and importance of internal organi - sational policies are also explored. In addition to the legal framework applicable in each jurisdiction cov - ered in this global overview, these sections also cover how to deal with the stumbling blocks that arise most frequently in practice.

Key themes can be observed across jurisdictions, revolving around the interview protocols and other fact-finding procedures, confidentiality and the sup - port that reporters and respondents can expect or request to receive. Of importance is the protection of all parties during the course of an investigation, balancing interests and rights and the practical steps to be taken in this regard, as well as potential conse - quences of the manner in which the employer handles the matter. Once an internal investigation comes to a close, par - ties should be aware of the manner in which the com - munication of the outcome and interactions with the relevant stakeholders should be handled. Therefore, this Guide discusses in detail transparency require - ments and the consequences of violating these. In some jurisdictions, beyond simply addressing the immediate outcomes for the so-called reporter and respondent, the post-investigation period is used to address harm, foster accountability and rebuild trust. Given the increasingly mobile world in which we live, employers also should keep in mind that internal investigations spanning multiple jurisdictions often have specific considerations. In particular, each juris - diction may have its own substantive and procedural laws. In this context, terms like whistle-blowing, bul - lying/mobbing and discrimination have different defi - nitions depending on the jurisdiction, and an allega - tion that is potentially criminal in one place may not be elsewhere. Employers carrying out cross-border investigations should also consider data protection, rules around the use of AI and the safeguarding of confidential information, as well as the rights of all stakeholders who may not speak the same language.

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AUSTRALIA

Australia

Law and Practice Contributed by: Kathy Dalton, Jonathan Wright, Gella Rips and Mirna Oghanna Workdynamic Australia

Sydney

Tasmania

Contents 1. Opening an HR Internal Investigation p.10 1.1 Circumstances p.10 1.2 Bases p.10 1.3 Communication Channels p.11 1.4 Responsibility p.11 1.5 Obligation to Carry Out an HR Internal Investigation p.12 1.6 Prohibition on Carrying Out an HR Internal Investigation p.12 1.7 Other Cases p.13 2. Initial Steps p.13 2.1 Communication to the Reporter and the Respondent p.13 2.2 Communication to Authorities p.14 2.3 Confidentiality Agreements and NDAs p.14 2.4 Preliminary Investigation and Scope-Setting p.15 3. Interviews and Fact-Finding p.16 3.4 Interviewers p.17 3.5 Neutral Party p.17 3.6 Support Person and/or Lawyer p.17 3.7 Information p.18 3.8 Stopping the Interview p.18 3.9 Minutes p.19 3.10 Recording p.19 3.11 Other Fact-Finding p.20 4. Protection of the Parties During an HR Internal Investigation p.20 4.1 Protection of the Reporter p.20 4.2 Protection of the Respondent p.21 4.3 Measures Against the Respondent p.21 4.4 Protection of Other Employees p.21 3.1 Interviewees p.16 3.2 Participation p.16 3.3 Format p.17

5. Procedural Requirements and Proof p.21 5.1 Requirements p.21 5.2 Internal Regulations p.21 5.3 Burden and Degree of Proof p.22 6. Conclusion and Outcome of an HR Internal Investigation p.22 6.1 Deciding to End an HR Internal Investigation p.22 6.2 Procedure for Ending an HR Internal Investigation p.22 6.3 Conclusion p.23 6.4 Reports p.23 6.5 Information p.23 6.6 Communications to Authorities p.24

6.7 Other Communications p.24 6.8 Disciplinary Measures p.24 6.9 Other Measures p.25 7. Data Protection p.25 7.1 Collecting Personal Data p.25 7.2 Specific Rules p.25 7.3 Access p.26 7.4 AI p.26

8. Special Cases p.26 8.1 Whistle-Blowing p.26 8.2 Sexual Harassment and/or Violence p.26 8.3 Other Forms of Discrimination and/or Harassment Including Bullying and/or Mobbing p.27 8.4 Criminal Cases p.27 8.5 Multi-Jurisdictional HR Internal Investigations p.27

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AUSTRALIA Law and Practice Contributed by: Kathy Dalton, Jonathan Wright, Gella Rips and Mirna Oghanna, Workdynamic Australia

Workdynamic Australia is a specialist employment law and workplace investigations firm delivering in - dependent and impartial workplace investigations services to leading public and private sector employ - ers, either instructed directly or through legal advis - ers. The firm is led by six directors and supported by over 20 lawyers with extensive experience in deliv - ering investigation services and support to employ - ers dealing with a broad range of matters, including bullying, discrimination, sexual harassment, safety incidents, fraud, corruption and other misconduct is - sues. With offices in Sydney and Melbourne and staff

located in Brisbane, it capably resources matters of all size and complexity across Australia. The team is trained and experienced in trauma-informed and person-centred investigation practices. As skilled and experienced employment lawyers, the team reg - ularly manages large-scale, complex and high-profile investigations with the independence and expertise to make sound findings of fact, reliable application of policy and inciteful recommendations as to post- investigation steps under relevant regulatory and dis - ciplinary frameworks.

Authors

Kathy Dalton brings more than three decades of expertise in employment law, providing strategic guidance and representation to public and private sector employers across employment, equal opportunity and industrial

including managing performance and conduct issues, managing injured workers and fitness-for- duty assessments, terminations of employment, and enforcing post-employment restraints.

Gella Rips has specialised in employment law for over 15 years. She holds a Master’s in Labour Law and Industrial Relations and has worked in both private practice and in-house roles. Based in Sydney,

relations matters. Boards and senior executives regularly seek her counsel on business-critical and high-stakes workforce issues. She has extensive experience in managing and supporting sensitive workplace investigations, internal reviews and discipline, performance management and dismissal processes. Based in Melbourne, and prior to joining Workdynamic Australia as a Director and Principal, Kathy served as an employment law partner at K&L Gates and DLA Piper.

Gella is recognised for her expertise in conducting complex workplace investigations and capability in managing diverse stakeholder expectations while conducting thorough and impartial investigations. She is regularly invited to present at industry forums on topics relating to best-practice workplace investigations.

Jonathan Wright has specialised in employment law for over 16 years and is renowned for conducting “best practice” investigations. Based in Sydney, Jonathan practised at Minter Ellison Lawyers, before co-founding

Mirna Oghanna is a skilled employment and industrial relations lawyer, having practised exclusively in this area since her admission to

Workdynamic Australia. Jonathan heads Workdynamic’s practice relating to investigations into allegations of reportable conduct, including historical sexual abuse. He has also conducted numerous investigations into allegations of bullying, discrimination, corruption and criminal conduct. In addition, Jonathan provides advice to employers in relation to the full range of employment issues,

practice. Mirna has advised clients in the public and private sector across a broad range of industries, and is particularly versed in the application of industrial awards and agreements. Based in Melbourne, Mirna regularly conducts investigations for clients into alleged psychosocial harms, code-of-conduct breaches and matters involving potential fraud and corruption.

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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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AUSTRALIA Law and Practice Contributed by: Kathy Dalton, Jonathan Wright, Gella Rips and Mirna Oghanna, Workdynamic Australia

1.3 Communication Channels Employers are generally not required to have specific reporting channels for employees to report concerns, with the exception of whistle-blowers’ disclosures (see 8.1 Whistle-Blowing ). Subject to any statutory, contractual or regulatory con - straints, employers retain discretion as to the design and operation of complaint‑handling processes. From a compliance and risk perspective, employers should ensure that appropriate and accessible options for reporting and responding to relevant unlawful conduct are provided and regularly communicated to employees and other impacted people. This is an important action that employers can take to help sat - isfy the positive obligation imposed under a range of WHS and anti-discrimination laws to take reasonable and proportionate measures to eliminate, as far as possible, certain unlawful conduct (such as bullying, sexual harassment and discrimination). An effective complaint-reporting process should be in writing and contain: • easy-to-understand processes for making and managing complaints, including possible out - comes; • confidentiality protocols; • protections against victimisation or retaliation for making a report; • options for reporting internally or externally, infor - mally or formally, including anonymously (to the extent possible); • a choice of nominated internal contact officers for making a report; • information about how to contact relevant exter - nal bodies (such as the Australian Human Rights Commission, the Fair Work Commission, the Fair Work Ombudsman, WHS regulators, and state and territory anti-discrimination agencies); and • clear escalation pathways where a complaint is not managed effectively or involves senior employees. 1.4 Responsibility Australia has no mandatory qualifications for work - place investigators. However, investigations that are not conducted by appropriately skilled or experienced

• relevant industrial instruments, such as awards or enterprise agreements. In some circumstances, investigations are required to meet specific legal obligations imposed by statute, workplace instruments or regulatory frameworks. In other cases, employers may initiate investigations to demonstrate that reasonable and proportionate steps have been taken to discharge responsibilities under those laws, including duties relating to WHS, procedural fairness, discrimination and harassment prevention. For example, an employer may conduct an investiga - tion in order to: • establish a sound evidentiary basis, through a procedurally fair fact‑finding process, to support disciplinary decision‑making, including termination of employment; • demonstrate compliance with statutory obligations by evidencing that any action taken was reason - able and did not constitute unlawful adverse action under the FW Act; and • identify, assess and address risks to WHS, includ - ing psychosocial risks, to discharge duties under WHS laws. Employers must also be aware of laws that may restrict or impact how an investigation is conducted – for example, as follows. • Privacy laws may limit how personal information and sensitive employee data is collected, used and disclosed during the investigation process. • Allegations of potentially criminal conduct, such as assault, fraud or corruption, may require refer - ral to law enforcement (see 2.2 Communication to Authorities for further detail). In such circum - stances, any internal investigation may need to be paused, delayed or reframed to avoid compromis - ing law enforcement processes. • Whistle-blower laws may impose additional confi - dentiality and procedural requirements that shape how an investigation is undertaken.

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AUSTRALIA Law and Practice Contributed by: Kathy Dalton, Jonathan Wright, Gella Rips and Mirna Oghanna, Workdynamic Australia

investigators risk being poorly designed or executed, which may compromise procedural fairness, under - mine outcomes and cause unnecessary distress to participants. With new duties requiring employers to identify and address workplace psychosocial hazards, investiga - tions have shifted from a one-size-fits-all approach to a more responsive, person-centred model. Investiga - tors are now expected to use trauma-informed and culturally sensitive practices, and in some sensitive matters – such as sexual harassment – a same‑gender investigator may be appropriate. Workplace policies commonly identify responsibil - ity for the conduct of investigations and may specify whether investigations are to be undertaken internally or by external investigators. Regardless of whether an investigation is conducted internally or externally, employers should ensure that the appointed investigator: • has appropriate experience and training relevant to the nature of the investigation; • can maintain strict confidentiality; • is free from actual or perceived conflicts of interest; • is objective (neutral and unbiased) and impartial; • is trained in trauma‑informed investigation approaches; and • is familiar with the applicable investigative frame - work, including relevant legislation, workplace poli - cies and procedures. Where an investigation is conducted internally, con - cerns may arise as to whether sufficient independence can be maintained. In such circumstances, employers may consider engaging an external investigator, par - ticularly where senior personnel are involved or where impartiality may reasonably be questioned. External investigators are often engaged where specialised expertise or a strong understanding of investigative principles is required. Before appointing an investigator, consideration should be given to whether it is appropriate to engage the investigator through in-house legal or external lawyers to establish and preserve legal professional

privilege (LPP) over the investigation report and other documents created during the investigation. This may be particularly important where there is a real risk of litigation or regulatory scrutiny. Employers should also consider when and how to engage external lawyers in the investigation process. Early engagement of external lawyers can assist with: • framing the scope and terms of reference of an investigation; • advising on process, procedural fairness and legal obligations; • ensuring that critical evidence is preserved; and • confirming that the appropriate investigative frame - work is applied. 1.5 Obligation to Carry Out an HR Internal Investigation As set out in 1.1 Circumstances and 1.2 Bases , employers are not legally required to carry out an investigation. However, an investigation may be nec - essary and appropriate to demonstrate and manage legal compliance and risks. 1.6 Prohibition on Carrying Out an HR Internal Investigation Investigations are a routine function of workplace and workforce management. There are, however, limited circumstances in which an employer may be prohibited from commencing or continuing an investigation, including: • direction from law enforcement not to proceed, where an internal investigation would risk prejudic - ing a criminal investigation; or • an order or injunction from a court or tribunal pre - venting further investigation. Although relatively rare, there may also be situations in which it is not practicable to conduct an investigation. This may include instances where: • relevant witnesses are unavailable; • allegations are historic and evidence is no longer accessible;

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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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AUSTRALIA Law and Practice Contributed by: Kathy Dalton, Jonathan Wright, Gella Rips and Mirna Oghanna, Workdynamic Australia

However, procedural fairness requires that respond - ents be afforded a reasonable opportunity to respond to the allegations. What is reasonable will depend on the circumstances, including the seriousness, com - plexity and volume of allegations. Procedural fairness is also flexible, meaning that an employer can delay notifying a respondent of an inves - tigation or the details of allegations in order to pre - serve the integrity of the evidence. This may include interviewing the reporter or witnesses or securing documentary evidence before alerting the respondent. 2.2 Communication to Authorities In certain situations, employers may be obliged, or it may be prudent, to notify external authorities when an investigation commences or serious allegations are first identified. These considerations usually arise in relation to criminal conduct, significant professional or financial misconduct, serious safety incidents or statu - tory reporting regimes. The need to notify will depend on the nature of the allegations and the employer’s regulatory environment. For example: • police or other law enforcement agencies – where the allegations, on their face, disclose potential criminal conduct such as sexual offences, child abuse or serious fraud; • professional regulatory bodies, such as the Austral - ian Health Practitioner Regulation Agency – where the allegations raise immediate concerns about professional conduct, registration or public safety; • industry regulators, such as the Aged Care Quality and Safety Commission – where allegations may indicate non‑compliance with sector‑specific legis - lative or regulatory requirements; • WHS regulators and workers’ compensation insur - ers – where an incident leading to an investigation involves a notifiable incident, work‑related injury or illness; • professional indemnity insurers – where policy terms require early notification of circumstances that may give rise to a claim; • the Commonwealth Ombudsman – where an inves - tigation has commenced following the receipt of a public interest disclosure (PID); • the Office of the Australian Information Commis - sioner (OAIC) – where there is a suspected or

actual eligible data breach requiring early assess - ment and notification under privacy laws; • financial regulators, such as the Australian Securi - ties and Investments Commission (ASIC) – where allegations signal potential contraventions of the Corporations Act 2001 (Cth) (the “Corporations Act”) or related financial services legislation; • integrity and anti‑corruption bodies, such as the Independent Broad-based Anti-Corruption Com - mission (IBAC) – where allegations involving public officials raise the possibility of corrupt conduct; and • the Australian Prudential Regulation Authority (APRA) – where allegations involving APRA‑reg - ulated entities may indicate material breaches of prudential financial standards, governance frame - works or risk management controls. Before notifying authorities, employers should care - fully review all relevant legislative, regulatory, con - tractual and policy obligations, including applicable thresholds, timing and content. Where those requirements are complex or carry sig - nificant legal or regulatory risk, it is prudent to seek legal advice to ensure compliance while protecting the integrity of the investigation process. Generally, employers should be careful and informed about the nature and extent of information provided to authorities, as that information may be used or relied on in external processes, and may impact the integrity of its internal processes for managing the matter. 2.3 Confidentiality Agreements and NDAs Maintaining confidentiality is paramount to the integ - rity of workplace investigations, and participants are ordinarily instructed not to disclose information about the matter. Investigators typically document the chosen approach in an investigation protocol to ensure that expecta - tions are communicated consistently. In routine or less serious matters, confidentiality is usually maintained through a lawful and reasonable direction requiring participants not to discuss the investigation while it is ongoing.

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AUSTRALIA Law and Practice Contributed by: Kathy Dalton, Jonathan Wright, Gella Rips and Mirna Oghanna, Workdynamic Australia

In more serious investigations, participants may be asked to sign a confidentiality or non‑disclosure agreement (NDA), although this is not mandatory and should be considered carefully in the circumstances due to the potential for delay or complexity arising from negotiation of the NDA’s terms. For non-employees, such as contractors, a confiden - tiality agreement may be appropriate, as employers generally lack an equivalent power to impose enforce - able confidentiality obligations by direction alone. From 1 November 2026, Victorian legislation will pro - hibit the use of NDAs relating to workplace sexual har - assment between employers and employees in certain circumstances. No equivalent prohibition currently applies in other Australian jurisdictions, although the regulatory landscape in this area continues to evolve. Even where there is no legal restraint, NDAs that are overly broad, coercive or reasonably perceived as intended to “silence complainants”, particularly relat - ing to sexual harassment matters, may attract legal or regulatory scrutiny. Any confidentiality obligation should not prevent employees from seeking legal advice, obtaining sup - port, or making reports to authorities where legally permitted or required. Where an employee is subject to a lawful confidenti - ality obligation, failure to comply may be addressed by disciplinary action, depending on the nature and seriousness of the breach. 2.4 Preliminary Investigation and Scope- Setting Preliminary investigations (or “preliminary assess - ments”) are a common and useful procedural step often undertaken before commencing a formal inves - tigation, and are frequently contemplated or required by workplace policies. A preliminary assessment assists an employer in determining whether issues warrant investigation, are better managed through other processes, or should be closed without further action.

Preliminary assessments are particularly useful for clarifying issues early and ensuring that any subse - quent investigation is properly scoped, reducing cost, inefficiency and delay. They are especially valuable: • where allegations are unclear, broad or historical, or where the availability of witnesses or documen - tary evidence is unclear; and • for identifying whether threshold jurisdictional or policy issues exist or may arise. A preliminary assessment typically involves: • reviewing the complaint or information received; • clarifying the nature and particulars of the allega - tions; • identifying applicable policies or legal frameworks; • identifying available evidence and relevant wit - nesses; • assessing whether there is sufficient evidentiary basis to proceed; • assessing whether alternative resolution pathways may be suitable; and • identifying any mandatory reporting obligations or interim risk‑management measures. Where allegations are serious or present an imminent risk, or where the circumstances are sufficiently clear on their face, it may be unnecessary or inappropriate to conduct a preliminary assessment unless required by policy or law. Preliminary assessments can be particularly useful in the context of “stop bullying” or “stop sexual harass - ment” applications under the FW Act. The Fair Work Commission must consider any final or interim out - comes arising out of an investigation into the matter, any procedure available to the worker to resolve griev - ances or disputes, and any final or interim outcomes arising out of those procedures. A properly conducted preliminary assessment allows an employer to dem - onstrate early, proportionate and good faith action in response to an application. This can assist in nar - rowing the issues in dispute, reducing the likelihood of urgent intervention orders, and evidencing that the employer has taken reasonable steps to address workplace risks while a formal investigation or other resolution process is considered or under way.

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AUSTRALIA Law and Practice Contributed by: Kathy Dalton, Jonathan Wright, Gella Rips and Mirna Oghanna, Workdynamic Australia

Engaging external lawyers or investigators to con - duct preliminary assessments can significantly assist employers in defining an investigation’s scope. See 1.4 Responsibility for further detail.

While they are not usually entitled to full witness state - ments or confidential material, they must be given suf - ficient information to enable a meaningful response. Further Interviews Sometimes, individuals need to be interviewed more than once, particularly where: • clarification or further evidence is required as new evidence emerges; and • apparent inconsistencies arise that can only be assessed once evidence is considered collectively. Repeat interviews, while often necessary, can cause distress and disruption for participants. As a matter of best practice, any additional interviews should be limited to clearly identified issues, and the purpose and scope of those interviews should be transparently explained to the individuals concerned. 3.2 Participation For many reasons, individuals may be reluctant or refuse to participate in an investigation. In the first instance, employers should seek to under - stand the nature of the individual’s concerns and con - sider whether any reasonable measures can be put in place to allow their voluntary participation. For example, fears of potential victimisation or adverse treatment may be addressed by: • reiterating the employer’s obligations regarding confidentiality and victimisation; • reminding all participants of those obligations; and • providing the individual with a dedicated contact point to raise concerns during the course of the investigation. Employees can generally be directed to participate in an investigation where the direction is lawful and reasonable. A refusal to comply with such a direction may itself constitute misconduct, potentially justifying disciplinary action. If the refusal persists, the employer may be informed that, if they choose not to participate, the investiga - tor may proceed on the available evidence and draw

3. Interviews and Fact-Finding 3.1 Interviewees

Who is interviewed will depend on the nature and scope of the allegations, but generally falls into the following categories. Reporter The reporter is usually interviewed early in the inves - tigation in order to: • clarify the nature and particulars of the allegations; • understand the context, background and alleged impact of the conduct; • identify relevant dates, locations and potential wit - nesses; and • obtain any supporting documents or other evi - dence. Witnesses Witnesses can include individuals who: • directly observed the alleged conduct; and • can provide relevant contextual or background information, such as supervisors or managers with knowledge of workplace practices, reporting struc - tures or patterns of behaviour. The number of witness interviews, and the scope of those interviews, should be no more than is relevant and necessary to help prove or disprove a material issue in dispute. Respondent Procedural fairness requires that the respondent be informed of the allegations and any adverse evidence and be given a reasonable opportunity to respond. Therefore, respondents are usually interviewed later in the investigation.

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AUSTRALIA Law and Practice Contributed by: Kathy Dalton, Jonathan Wright, Gella Rips and Mirna Oghanna, Workdynamic Australia

conclusions without the benefit of that employee’s account, provided procedural fairness requirements have otherwise been met. In such circumstances, it may be open to the investi - gator to draw reasonable inferences from an employ - ee’s failure to provide an explanation or respond to adverse information that has been put to them. Where an employee seeks to rely on the privileges against self-incrimination or exposure to penalty to refuse to attend or answer questions, the employer should obtain specific legal advice, including whether such a right is exercisable. Employers generally lack control over non‑employees, and, unless legally or contractually required, their par - ticipation will be voluntary. 3.3 Format Ideally, interviews should be conducted in-person or via videoconference (for example, Zoom) rather than telephone interviews, as it can be more challenging to assess witness credibility. Online interviews are now standard and appropriate where: • parties are geographically dispersed; • travel would cause unnecessary delay or cost; • issues are straightforward and not highly con - tested; • confidentiality and privacy can be maintained; and • measures can be put in place to ensure confidenti - ality and privacy. In-person interviews may be preferable where: • allegations are particularly serious or sensitive; • credibility is likely to be key to the findings; • there are concerns about coaching or interference from a third party; and • the interviewee requests it due to distress, lack of privacy, or difficulty with technology. Employers should consider the suitability of an inter - view venue. To maintain confidentiality and privacy of participants, it may not be ideal to conduct on-site

interviews and preferable to arrange an alternative suitable location. When conducting interviews and sharing information online, employers should ensure that confidentiality is maintained by the relevant parties and any other measures to prevent unauthorised distribution or access. 3.4 Interviewers Generally, most investigations involve a single inter - viewer, who is the appointed investigator. See 1.4 Responsibility for the skills and considerations required of an investigator. In many investigations, experienced interviewing skills and qualifications are required to: • bring the appropriate gravitas and weight to the investigation; • have the necessary subject matter expertise to make informed findings of fact and application of policies; • draw out and test the evidence (particularly incon - sistent or contradictory evidence); and • ensure that the investigation is conducted impar - tially and in a trauma-informed way. 3.5 Neutral Party A neutral party is distinct from a support person and does not usually attend interviews. Their role is strictly to attend as a witness to observe the interview. Their presence may be appropriate in limited circumstanc - es, such as where a matter is particularly sensitive or the process may be disputed. They may perform the role of note-taker for the participants. In some cases, a witness may request that a person attend to act as a cultural liaison or interpreter. 3.6 Support Person and/or Lawyer Support Persons Most investigative frameworks allow support persons at interviews, and doing so is generally considered best practice. The FW Act also treats an unreasonable refusal to permit a support person in dismissal‑related discussions as a relevant consideration in determining unfair dismissal claims.

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