Misconduct and serious misconduct investigations
A misconduct investigation establishes, on the evidence, whether the conduct alleged against an employee happened, so the employer can decide what action is justified. The Fair Work Regulations explain what serious misconduct includes, and findings that could lead to dismissal can be tested before the Fair Work Commission. BION Partners investigates misconduct allegations independently and reports on whether each allegation is substantiated.
What is serious misconduct?
Under regulation 1.07 of the Fair Work Regulations 2009 (Cth), serious misconduct has its ordinary meaning, and it includes:
- wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment
- conduct that causes serious and imminent risk to the health or safety of a person, or to the reputation, viability or profitability of the employer’s business
- theft, fraud, assault or sexual harassment in the course of employment; being intoxicated at work; or refusing to carry out a lawful and reasonable instruction consistent with the employee’s contract.
The conduct in the last point is not serious misconduct if the employee can show that, in the circumstances, it was not conduct that made employment during the notice period unreasonable. Whether conduct reaches that threshold depends on the facts, which is what an investigation establishes.
What misconduct do we investigate?
- Conflict of interests
- Corruption
- Fraud
- Workplace theft
- Inappropriate use of IT resources
- Misuse of authority
- Misuse of social media
- Nepotism
- Negligence and insubordination
- Workplace violence
- Public interest disclosures (whistleblowing)
- Other misconduct and employee grievances
For complaints about how people treat each other, see bullying and harassment and sexual harassment investigations.
BION Partners does not provide services relating to workers compensation, does not conduct surveillance activities, and does not interview children.
Why misconduct findings get tested
If a dismissal is challenged as unfair, the Fair Work Commission must consider matters including whether there was a valid reason related to the employee’s capacity or conduct, whether the employee was notified of that reason, and whether they had an opportunity to respond (Fair Work Act 2009 s 387). An employer’s belief that misconduct occurred is not enough; the Commission decides for itself whether the conduct happened.
In Hatch v WesTrac Pty Ltd [2020] FWC 5729, the Commission found a dismissal unfair after identifying flaws in the employer’s investigation: key witnesses were not spoken to, untested written statements were relied on, and assumptions were not put to the employee for a response. See investigation findings and unfair dismissal.
How do we investigate misconduct?
We help you assess the matters raised, formulate specific allegations (what, when, where, who) and agree terms of reference. We interview the complainant, the respondent and relevant witnesses, and gather documents such as emails, messages, rosters and records. The respondent is given the substance of the allegations and the relevant evidence, and a genuine opportunity to respond.
Interviews are one-on-one and conducted in person or by video call. Every participant gives written consent before their interview.
We use secure AI tools to help with administrative tasks such as transcription and organising evidence. Every finding is made and reviewed by the investigator, not by AI, and confidentiality is maintained throughout.
What standard of proof applies?
Workplace investigations use the civil standard, the balance of probabilities: is it more likely than not that the conduct occurred? The more serious the allegation, the stronger the evidence needed to be reasonably satisfied, often called the Briginshaw principle. Allegations of serious misconduct therefore need careful, well-tested evidence.
What if the conduct may be a crime?
Some allegations, such as theft, fraud or assault, may also be crimes. A workplace investigation is not a police investigation. Employers should seek legal advice about how a workplace investigation and any police matter interact before starting.
Who decides the outcome?
The employer. The investigator makes findings of fact about whether the allegations are substantiated; the employer’s decision-maker considers the report and decides whether any action is warranted. If that action may include dismissal, the employee should be told of the proposed reason and given an opportunity to respond before a final decision.
Not sure whether you need an external investigator? Compare external and internal investigations or read what affects the cost.
General information only. This page explains the law in general terms and is not legal advice. For advice about your situation, speak with a lawyer.
Frequently asked questions
Does the investigator decide whether to dismiss someone?
No. The investigator makes findings of fact about whether the allegations are substantiated. The employer remains the decision-maker on any outcome, such as disciplinary action.
Can you investigate allegations against senior executives or board members?
Yes. We investigate matters involving people at every level, from operational staff to senior executives, C-suite and board level, and are experienced in liaising with unions involved in representing parties to a complaint.
Do you investigate whistleblower reports?
Yes. Public interest disclosures (whistleblowing) are among the matters we investigate. Whistleblower reports can carry extra legal obligations and confidentiality requirements, so take legal advice on your obligations.
How long does a misconduct investigation take?
It depends on the size and complexity of the matter. Many investigations are completed within about a week; larger or more complex matters take longer, and we’ll give you a timeframe at the start.
Sources
- Fair Work Regulations 2009 (Cth) reg 1.07, Meaning of serious misconduct (Federal Register of Legislation)
- Fair Work Act 2009 (Cth) s 387 (AustLII)
- Hatch v WesTrac Pty Ltd [2020] FWC 5729
- Fair Work Commission: Unfair dismissal
- Queensland Public Sector Commission: Managing workplace investigations, a practical guide (2024)
Checked 22 October 2026. Laws and guidance change; check the source before relying on it.