A serious workplace complaint has landed on your desk. The allegations may involve bullying, sexual harassment or misconduct, and you know the matter needs to be handled carefully. Your first instinct might be to search for a workplace investigation lawyer.
Sometimes that is exactly the right decision. But not every workplace investigation requires a lawyer to establish what happened. In many cases, what an organisation needs first is an experienced independent workplace investigator who can examine the evidence, interview the people involved and make impartial findings.
The distinction matters. A lawyer provides legal advice. An investigator establishes the facts. Depending on the circumstances, you may need one or both.
What does a workplace investigation lawyer do?
A workplace investigation lawyer is generally an employment lawyer who advises an organisation about workplace complaints, legal obligations and potential risks. Some employment lawyers also personally conduct workplace investigations.
Depending on the engagement, a lawyer may:
- advise whether a formal investigation is appropriate and how it should be scoped
- provide advice about employment law, procedural fairness and potential legal exposure
- assist with matters involving threatened or existing proceedings
- advise on regulatory obligations and the employer’s response
- conduct an investigation or engage an external investigator where appropriate
Engaging a lawyer does not necessarily mean that the lawyer needs to conduct every interview or make the factual findings. Those functions can also be undertaken by an appropriately experienced independent investigator.
What does an independent workplace investigator do?
An independent workplace investigator is engaged to establish what occurred, based on the available evidence. The investigator is not there to advocate for the complainant, the respondent or the employer. Their role is to undertake an objective fact-finding process within agreed terms of reference.
A workplace investigation will typically involve:
- clarifying the allegations and identifying the issues to be investigated
- interviewing the complainant, respondent and relevant witnesses
- obtaining and assessing documents, messages and other relevant material
- providing the respondent with a fair opportunity to respond to the allegations and adverse material
- assessing the evidence on the balance of probabilities and making findings
- preparing a clear report explaining the evidence, analysis and findings
The employer generally remains responsible for determining any management or disciplinary response. The investigator provides the factual foundation for that decision; they do not act as the organisation’s legal adviser.
Do you actually need a lawyer to investigate a workplace complaint?
Not necessarily. There is no general requirement for an employment lawyer to conduct every workplace investigation. The more useful question is whether the organisation needs legal advice, independent fact-finding, or both.
For example, where an employer receives a complaint of bullying or misconduct and the key issue is whether particular events occurred, an external investigator may be the most direct way to establish the facts. This can be particularly valuable when internal HR personnel are involved in the complaint, know the parties closely or do not have the capacity to conduct a complex investigation.
Importantly, the possibility that a matter may later be challenged does not, by itself, mean a lawyer must conduct the investigation. A carefully scoped, procedurally fair investigation can be important in both routine and high-risk matters.
When should you contact a workplace investigation lawyer first?
Early legal advice may be particularly important where:
- a legal claim has commenced or litigation is reasonably anticipated
- the allegations involve senior executives, directors or complex governance issues
- there is a significant question about the organisation’s statutory obligations
- regulators or police may be involved
- the organisation needs advice about legal professional privilege, employment action or a proposed response
Employers and persons conducting a business or undertaking also have a positive duty under the Sex Discrimination Act 1984 to take reasonable and proportionate measures to eliminate, as far as possible, relevant unlawful conduct. This includes sex discrimination, sexual harassment, sex-based harassment, workplace environments hostile on the ground of sex and related victimisation. Where a complaint suggests a broader systemic risk, legal advice may be appropriate alongside fact-finding.
For further information, see the Australian Human Rights Commission’s guidance on the positive duty:
When is an independent workplace investigator the right choice?
An independent investigator is often the right choice when the immediate priority is to establish what happened, fairly and without an internal conflict of interest.
That may be the case when:
- the complaint concerns bullying, harassment, discrimination or serious misconduct
- the allegations are disputed and multiple accounts or documents need to be assessed
- the HR team is too close to the matter or lacks investigative capacity
- confidence in the impartiality of an internal process may be difficult to maintain
- the organisation needs clear, evidence-based findings to inform its next steps
Independence should be more than a label. It requires a process that is impartial, evidence-led and procedurally fair, including a genuine opportunity for the respondent to answer the allegations.
Can a lawyer and an independent investigator work together?
Yes. In some matters, the most effective approach is for the employment lawyer to provide legal advice while an independent investigator conducts the fact-finding. Clear roles can help avoid confusion about who is advising the organisation and who is assessing the evidence.
A lawyer may engage an investigator on the client’s behalf, including where legal professional privilege is being considered. However, engaging an investigator through a law firm does not automatically make an investigation report or its underlying material privileged. Whether privilege applies depends on the circumstances, including the dominant purpose of relevant confidential communications. Organisations should obtain legal advice rather than assume privilege will attach.
An organisation can also engage an independent investigator directly and seek legal advice separately, if that is appropriate to the matter.
Questions to ask before deciding who to engage
- Do we need legal advice about our obligations or exposure, or do we first need reliable findings of fact?
- Is litigation underway or reasonably anticipated?
- Is there an actual or perceived conflict of interest if the matter is handled internally?
- Are the allegations serious, sensitive or complex enough to warrant an external process?
- Do we need advice on legal professional privilege?
- Who will make the decision about any action once the investigation is complete?
If legal advice is the immediate need, contact an employment lawyer. If the central task is establishing the facts independently, an experienced workplace investigator may be the appropriate first call. Some matters will require both.
Frequently asked questions
Can an independent workplace investigator investigate sexual harassment complaints?
Yes. An appropriately experienced independent investigator can examine sexual harassment allegations, interview participants, assess evidence and make factual findings. The employer may also need separate legal advice about its obligations and response.
Do workplace investigations have to be conducted by a lawyer?
No. An employer may engage an independent external investigator to conduct the fact-finding. The appropriate arrangement depends on the nature of the allegations, the organisation’s obligations and the risks involved.
Can I engage an independent workplace investigator without a law firm?
Yes. Organisations can engage independent workplace investigators directly. Where legal advice is also required, a lawyer can be involved separately or as part of a coordinated approach.
Getting the right help early
The right starting point is not always the same. What matters is understanding whether your organisation needs legal advice, a fair and independent investigation, or both—before the process becomes more complicated than it needs to be.
I conduct independent workplace investigations involving serious and sensitive complaints, providing clear, evidence-based findings to help organisations make informed decisions. Based in Brisbane, I work with organisations throughout Queensland and can discuss engagements more broadly.
If your organisation needs an independent workplace investigation, you can read more about my service here or contact me for a confidential conversation here.
General information only. This article does not constitute legal advice.