Snapshot
Workplace investigations have been the subject of significant media scrutiny recently, which raises an important question for employers: what can you do to strengthen the reliability of your own investigative processes?
Where procedural failings in workplace investigations are identified, they not only reflect poorly on the process but can be determinative of the outcome. Decisions made hastily can be challenged and overturned when the investigations supporting them are compromised by overlooked details and inadequate or unsustainable evidence.
Background
Over the course of this year, the Fair Work Commission has repeatedly commented on the conduct of workplace investigations, identifying specific vulnerabilities which attract scrutiny. We have summarised a number of the key decisions below.
In August, in Lamositele v Management and Training Corporation Pty Ltd [2026] FWC 2296, the Fair Work Commission delivered pointed criticism on the, and we quote “woeful” investigations conducted by the employer. The primary criticisms included the following:
- Delayed interviewing of the employee: The subject employee was not interviewed until two to three months after the alleged conduct, despite other witnesses having provided statements within a week of the allegations arising. The Commission noted that this delay undermined the evidentiary value of inconsistencies in the employee’s account, which would otherwise have served as indicia of reduced credibility.
- Misrepresentation of the employee’s account: The employer’s representative responsible for conducting the interviews inaccurately recorded the employee’s assertions in their notes. This error only came to light at the hearing, as the employee had not been given the opportunity to review, verify or sign a copy of the interview notes.
- Failure to formalise interview notes: The interview notes were never converted into a formal witness statement and remained in their original, informal form.
- Failure to complete investigations in a timely manner: The employee was issued a show cause letter seven months after the alleged conduct.
The Commission emphasised the importance of employers devoting resources to ensure investigations are prioritised and conducted in a timely manner.
The Commission has also recently highlighted the risks of relying solely upon employee witness evidence, especially where other evidence is available. In Box v Sirron Co. Pty Ltd [2026] FWC 301, the employer’s decision to dismiss the employee relied significantly on witness accounts, with no contemporaneous evidence in support of the behaviour used.
Witnesses failed to provide statements that could be produced at the hearing, and appeared reluctant to provide evidence in support of the employer before the Commission. In finding that the conduct could not be proved on the balance of probabilities, the Commission placed considerable weight on the “deficit of direct evidence from three of the four other employees alleged to have been witnesses”.
Even a well-resourced investigation with willing witnesses does not guarantee a finding in the employer’s favour where other procedural deficits exist. In Paladino v The University of Melbourne [2026] FWC 559, the investigation was conducted externally, and a 180-page investigation report was produced. However, the Commission approached all witness evidence with caution, following assessments that witnesses were “vindictive” or harboured “antipathy” or “strong prejudice” against the employee. The Commission made striking criticisms of managerial members of staff, who should have raised contemporaneous concerns regarding behaviour and performance with the employee, but failed to do so. The Commission described that failure as behaviour that “smacks of managerial cowardice.”
The Commission was also highly critical of the length of time taken to complete the investigation, which spanned eighteen months.
Action Points
The above decisions offer practical guidance for employers conducting or overseeing workplace investigations:
- Ensure that the investigation process is adequately resourced, to ensure that the investigation is completed in a timely manner.
- Ensure all interviews are conducted as contemporaneously as possible to the alleged event.
- Following interviews, provide a copy of interview notes to the person to sign and verify, to ensure the answers are recorded correctly.
- Provide the person an opportunity to provide a witness statement as part of the investigation, following the interview.
- Critically assess the motivations of witnesses who provide interviews, and consider the credibility of witnesses during the investigation process.
- Consider if there is contemporaneous evidence outside of witness evidence.
If you have a workplace investigation that requires external expertise, or would like guidance on strengthening your internal investigation processes, Bird & Bird’s employment team is well placed to assist. We have extensive experience conducting and advising on workplace investigations across a range of industries.
This article was written by Kristy Peacock-Smith, Thomas Du, Morgan Graham, and Nguyen Lan D’Arcy.
For further information, please contact:
Kristy Peacock-Smith, Partner, Bird & Bird
kristy.peacock-smith@twobirds.com
