Workplace Investigations: Gathering Facts Before Action

Industrial Relations Act, Chap. 88:01 · Equal Opportunity Act, Chap. 22:03 · Occupational Safety and Health Act, Chap. 88:08

Why This Matters

The purpose of a workplace investigation is to establish the facts before any decision is made. This principle is foundational. An employer who acts without investigating, who dismisses, disciplines, or otherwise penalises an employee on the basis of an allegation, a complaint, or an assumption rather than established facts, is not only likely to reach a wrong decision; they are almost certainly going to reach a legally indefensible one. The Industrial Court has consistently held that an employer’s failure to investigate before taking disciplinary action is a procedural defect that can, in itself, render a dismissal unfair regardless of the underlying merits.

An investigation is not a trial. Its purpose is not to prove guilt or innocence; it is to gather sufficient factual information to allow the employer to make a fair and informed decision about what happened and what the appropriate response should be. The standard of evidence required is the civil standard: whether it is more likely than not that the events described occurred in the manner alleged.

When to Conduct a Formal Investigation

Not every workplace concern requires a formal investigation. Minor interpersonal issues, first-time performance concerns, and routine policy queries can often be addressed informally. A formal investigation is required in the following circumstances: where an allegation of serious misconduct has been made, including theft, fraud, assault, harassment, or discrimination; where a formal grievance has been submitted that involves allegations against a named individual; where a workplace incident has occurred that may engage the employer’s duty of care under the Occupational Safety and Health Act (Chap. 88:08); where the matter, if substantiated, would be likely to result in a formal disciplinary sanction or dismissal; and where there is a significant conflict of accounts between two or more parties that cannot be resolved informally.

Principles of a Fair Investigation

Regardless of the nature of the allegation, every workplace investigation must adhere to four fundamental principles.

Impartiality requires that the investigation be conducted by a person who has no prior involvement in the matter and no personal interest in the outcome. Where no suitable internal person is available, for example, in a very small business where the allegation involves senior management, an external investigator should be considered.

Confidentiality requires that information gathered during the investigation be shared only with those who need it to make a decision. Witnesses should be asked to keep the content of their interviews confidential, and any breach of confidentiality during an investigation is itself a disciplinary matter.

The right to respond requires that any person who is the subject of an allegation be informed of the nature of that allegation and be given a genuine opportunity to respond before any decision is made. An investigation that reaches a conclusion without giving the respondent an opportunity to present their account is procedurally unfair and will not withstand scrutiny.

Proportionality requires that the scope of the investigation be appropriate to the seriousness of the allegation. A minor policy breach does not require the same investigative rigour as an allegation of serious misconduct. The investment of time and process should reflect the potential consequences.

The Investigation Process

1. Define the Allegation

Before interviews begin, the investigator should prepare a clear, written statement of the allegation or concern being investigated. This statement defines the scope of the investigation and ensures that all interviews are focused on the relevant facts. It should describe what is alleged to have occurred, when and where it is alleged to have occurred, and who is alleged to have been involved. It should not characterise the behaviour as misconduct or reach any conclusion; it should simply describe the factual allegation to be investigated.

2. Consider Suspension

In cases of serious misconduct, the employer should consider whether the subject of the investigation should be suspended on full pay pending the outcome. Suspension is a neutral act; it is not a disciplinary sanction and should not be characterised as such. It is appropriate where the presence of the individual in the workplace could prejudice the investigation, where there is a risk of harm to colleagues or assets, or where the nature of the allegation is so serious that continued normal working would be inappropriate. Suspension should be confirmed in writing and should state clearly that it is without prejudice to any outcome.

3. Conduct Investigation Interviews

Interviews should be conducted separately with the complainant, the respondent, and any relevant witnesses. Each interview should follow a structured format: an opening that explains the purpose of the interview and confirms confidentiality, open-ended questions to gather the person’s account of events, fact-finding questions to clarify specific details, and a closing that invites any additional information. The Interview Guide Templates provided later in this chapter set out the appropriate questions for each interview type. All interviews must be documented, and the interviewee should be given the opportunity to review and sign a record of their account.

4. Gather and Review Evidence

In addition to interview accounts, the investigator should gather any documentary evidence relevant to the allegation, emails, messages, system records, CCTV footage, attendance records, or any other materials that may corroborate or contradict the accounts given in interview. Evidence should be identified, collected, and documented in the investigation record. Where evidence is digital or electronic, steps should be taken to preserve it in its original form.

5. Prepare the Investigation Report

At the conclusion of the investigation, the investigator should prepare a written report setting out the allegation investigated, the process followed, a summary of the evidence gathered, findings of fact, stating, for each factual issue, whether the evidence supports the allegation on the balance of probabilities, and a recommendation as to whether there is a case to answer that warrants a disciplinary hearing. The report should not make a disciplinary decision, that is the role of the disciplinary hearing. It should establish the facts and assess whether those facts, if accepted, would constitute misconduct.

Legal Warning Under the Industrial Relations Act (Chap. 88:01), a disciplinary dismissal that was preceded by an investigation conducted by the same person who subsequently chaired the disciplinary hearing is procedurally compromised. The investigator and the disciplinary decision-maker should be different individuals wherever possible. Where the business is too small for this to be practicable, document the reason and ensure that the decision-maker approaches the disciplinary hearing with genuine openness to the evidence, rather than as a ratification of the investigation’s conclusions.

Investigation Interview Guides

The following guides provide a structured framework for each type of investigation interview. Use the same opening statement for all interviews to ensure consistency. Adapt the specific questions to reflect the facts of the matter under investigation. All interviews must be documented contemporaneously, notes should be taken during the interview and a written record prepared immediately afterwards.

Opening Statement: All Interviews “Thank you for meeting with me. My name is [name] and I have been asked to conduct a review of a workplace matter. The purpose of this interview is to gather information to help us understand what occurred. No conclusions have been reached at this stage. Everything discussed in this interview will be treated with confidentiality, and I would ask you to do the same. You are not obliged to answer any question, but I would encourage you to share any information you have that is relevant to the matter. Do you have any questions before we begin?”

Interview Type	Opening Approach	Key Questions
Complainant (Person making the complaint)	Acknowledge the concern. Confirm the purpose is fact-finding, not judgment. Reassure regarding process.	Can you describe what occurred in as much detail as possible? When did this first happen, and has it happened on more than one occasion? Where did this occur and who else was present? How has this affected you? Is there any documentation, messages, or other evidence you are aware of? Have you reported this to anyone previously? Is there anything else you would like me to know?
Respondent (Person the allegation is made against)	Inform the individual of the nature of the allegation clearly and in writing before the interview. Confirm this is their opportunity to respond.	You have been informed of the allegation. Can you tell me your account of the events described? Were you present on the occasion(s) referred to? Do you dispute any aspect of the allegation? If so, on what basis? Is there any documentation, messages, or other evidence you would like to provide? Are there any witnesses who could support your account? Is there any context you feel is relevant that has not been raised?
Witness (Third party with relevant knowledge)	Clarify the limited scope of the interview. Witness is asked only about what they personally observed or experienced.	I understand you may have some knowledge relevant to a matter we are reviewing. Can you describe what you personally observed? When and where did this occur? Who else was present at the time? Did you hear anything relevant? Did you observe the behaviour or interaction directly or are you aware of it from another source? Is there anything else you observed that you think is relevant?

Template – Investigation Report

Use this template to document the findings of every formal workplace investigation. The completed report should be reviewed by a senior manager before any disciplinary hearing is convened. Retain the report and all supporting documents, interview records, evidence gathered, and correspondence, on the personnel file for the matter.

Matter Reference
Date Investigation Opened
Investigator Name and Title
Employee(s) Subject to Investigation
Nature of Allegation
Date Allegation Received / Incident Occurred
Was Suspension Considered?	Yes □ No □ Suspension Implemented □
Interviews Conducted (names and dates)
Evidence Reviewed
Summary of Complainant’s Account
Summary of Respondent’s Account
Summary of Witness Evidence
Findings of Fact	For each factual issue: state whether the evidence supports the allegation on the balance of probabilities.
Conclusion	Is there a case to answer that warrants a disciplinary hearing? Yes □ No □
Recommendation
Investigator Signature
Date Report Completed
Reviewed By