Workplace Investigations

The principles of investigations do not come directly from legislation or a regulatory body but require the investigator to have a deep understanding of common law principles (from authority decisions by Commissioners or Judges).

The areas presenting risk in investigation, include:

  1. The investigator does not understand the legal principles to apply:
    • Balance of probability for civil matters rather than ‘proof beyond reasonable doubt’;
    • Briginshaw standard means a greater weight of evidence needs to be present where the allegations are more serious;
    • Rules of evidence – for example not allowing evidence about events which are not part of the allegations or about a person’s character; and giving hearsay evidence very little weight;
    • Procedural fairness and the rules the courts have established in relation to these;
    • An understanding of how far (or not) they are required to go with evidence gathering.
  2. The allegations were not properly formulated, either without sufficient detail, or without referencing the standard breached. Alternately some investigators set such a high bar (“this was criminal conduct”) that the findings are unlikely to ever meet that bar and the organisation becomes stuck in limbo;
  3. The investigator becomes confused with overlapping legislation – the Fair Work Act, OHS Act and discrimination legislation and regulations often all come into the one complaint;
  4. Bias is inadvertently introduced in a variety of ways undermining procedural fairness – and the investigation may be overturned by a court. For example, by asking leading questions in an interview, drafting witness statements with language that inadvertently suggests the investigator had already reached a conclusion, or by applying the Balance of Probability standard based on what the investigator ‘believes’ rather than on what the evidence shows.
  5. The investigator is scared to make a finding because it is finely balanced, and say they are “unable to make a finding” meaning the organisation has no way of being able to progress either one way or another but are stuck in no-man’s land.

The Victorian Chamber’s workplace relations team are experienced investigators attuned to and experienced in managing the above risks. All our investigation reports undergo an internal review by an independent person before we provide them, helping to ensure a high-quality service.