Workplace investigations and mediation for employers: what employers need to know
Workplace investigations and mediation for employers are two of the most important tools used to manage employee complaints, reduce legal risk and maintain a safe, productive working environment.
When concerns arise around bullying, harassment, misconduct or interpersonal conflict, the way a business responds can have significant legal, cultural and reputational consequences.
Choosing the wrong approach – or delaying action – can escalate issues and expose the business to unnecessary risk.
In short: Workplace investigations and mediation help employers address complaints, misconduct and workplace conflict in a fair, lawful and structured way.
This guide explains when an investigation or mediation is required, how each process works, and what employers must do to manage risk, meet legal obligations and protect workplace culture.
Business Law WA’s Employment Law team is highly experienced in workplace investigations and mediations. If you need support or have questions, get in touch via [email protected] or 08 9365 7746.
What is a workplace investigation and when is it necessary?
A workplace investigation is a formal, structured process used to determine whether allegations are substantiated based on relevant evidence obtained by the investigator.
An investigation may be appropriate where a complaint involves potential serious misconduct, is serious in nature, repeated or cannot be resolved through informal processes.
Complaints can vary in nature, from allegations of bullying or sexual harassment to employee theft or fraud.
The purpose of an investigation is fact-finding, not resolving relationships. It is important that the investigator is a separate person from the decision maker deciding any potential disciplinary action, and that the two processes are managed distinctly.
Workplace investigation process
While no two investigations are identical, a typical process includes:
- Assessing the complaint to determine scope, risk and urgency
- Appointing an investigator, either internal or external
- Notifying the parties of the allegations and process
- Gathering evidence, including interviews and documents
- Assessing credibility and making findings
- Producing an investigation report
- Determining outcomes, separate from the investigation itself
Common mistakes employers make
There’s increased risk for employers if:
- Your response is delayed
- Untrained or conflicted investigators are used
- Investigation findings are blurred with disciplinary decisions
- Mediation is treated as a shortcut
- There’s a failure to document decisions and reasoning
These issues can expose businesses to unfair dismissal, adverse action or work health and safety claims.
Investigations should be procedurally fair, unbiased, timely and well documented. Poor process can undermine otherwise valid findings.
In some instances, engaging an external investigator – such as a Business Law WA investigator – is required to ensure fairness, compliance and credibility, especially if the complaint involves senior leaders or HR personnel.
Employee rights and employer obligations
During a workplace investigation, employers should ensure:
- Employees are informed of allegations and given a chance to respond
- Interviews are conducted fairly
- Confidentiality is maintained as much as possible
- Decisions are not predetermined
Employees may ask to bring a support person to interviews, and best practice (or internal policies or procedures) may mean that the company should offer this in the first instance.
Organisations should clearly outline the role of a support person, and if considering refusal of a support person we would recommend that you seek advice to ensure procedural fairness.
What is workplace mediation?
Workplace mediation is a voluntary, facilitated process designed to help parties resolve conflict and restore working relationships. Unlike investigations, mediation does not determine fault or make findings.
Mediation may be appropriate where:
- Issues relate to communication breakdowns or interpersonal conflict
- Allegations are low-level or unclear
- The parties must continue working together
- Both parties are willing to participate
Mediation can be a fast, cost-effective and flexible way to resolve workplace disputes.
Business Law WA’s mediators offer an impartial and independent services. Find out more here.
HR kits/guides:
- Employment Lifecycle Kit – guidance notes on procedural fairness when taking disciplinary action and includes template letters for written warnings and termination.
- Recruitment and Termination Kit – guidance on procedural fairness, taking disciplinary action, and template written warning letters.
Related training course:
How workplace mediation works
Mediation typically involves a neutral mediator who will work with two individuals, however, sometimes several parties may be involved. The mediator’s role is to:
- Facilitate discussion between the parties
- Encourage open communication in a confidential setting
- Support parties to agree on practical steps forward
The mediation is confidential, meaning that the mediator will not report the outcome to the employer. However, with both parties consent the organisation may receive a copy of any mediated agreement able to be reached.
As the mediator is impartial and unbiased, they cannot provide any legal advice to the business regarding the employment situation outside of their role as independent mediator.
Find out about Business Law WA’s mediation process here.
Investigation vs mediation: how employers decide the right response
When navigating workplace investigations and mediation for employers, choosing the right response depends on risk, evidence and the nature of the complaint. Employers should consider:
- Severity of the allegations – serious misconduct usually requires investigation
- Risk to health and safety – higher risk favours formal processes
- Evidence disputes – investigations are better suited to fact-finding
- Willingness to participate – mediation must be voluntary
- Ongoing working relationships – mediation may support repair
In some cases, both processes may be appropriate. Mediation can occur before an investigation if risks are low and facts are not disputed or after an investigation to help repair working relationships.
However, mediation should not replace an investigation where findings are required to manage risk or meet legal obligations.
Practical next steps for employers
Before responding to a workplace complaint, employers managing workplace investigations and mediation should consider:
- Does this issue require fact-finding?
- What are the risks if no action is taken?
- Are the parties willing to engage constructively?
- Should external expertise be used?
Early assessment and the right process can prevent escalation and protect both employees and the business.
Frequently asked questions from employers
What risks do employers face if workplace complaints are handled incorrectly?
Poorly handled complaints can expose employers to unfair dismissal claims, claims of adverse action or discrimination, safety breaches and damage to workplace culture.
Do employers have to investigate every workplace complaint?
No, but employers must assess each complaint and take reasonable action that is proportionate to the seriousness of the issue.
What makes a workplace investigation legally defensible?
A legally defensible investigation is impartial, well-documented, procedurally fair and conducted in line with workplace policies and the relevant legislation.
How quickly should an employer respond to a workplace complaint?
Employers should respond promptly to demonstrate procedural fairness and reduce the risk of escalation or legal exposure.
Need expert support?
Business Law WA provides independent, specialist support for employers navigating complex workplace complaints. The Employment Law team conducts fair, defensible workplace investigations and mediations, helping businesses manage risk and cost, meet legal obligations and resolve issues early.
Whether you need an external investigator, a neutral mediator or advice on choosing the right process, Business Law WA can help.
Learn more about Business Law WA’s workplace investigations and mediation services. Contact the team via [email protected] or 08 9365 7746.
CCIWA Members receive a discounted rate on our legal services and free unlimited use of our Employee Relations Helpline. Not a Member? No problem, our team can support you, too!
This article is authorised by Business Law WA, an incorporated legal practice and wholly owned subsidiary of CCIWA. The contents of this article is general in nature and is not legal or professional advice and should not be relied upon as such.
