Procedural fairness in workplace investigations

What are the two rules of procedural fairness?

Queensland’s Public Sector Commission guide on managing workplace investigations describes them as:

• The hearing rule. A person must be given sufficient information to know the case against them, and be able to respond before a decision is made.
• The bias rule. A person is entitled to a decision made by a disinterested and unbiased decision-maker.

These principles come from administrative law and bind public sector agencies. Private employers are not bound in the same way, but the Fair Work Commission looks closely at process when a dismissal is challenged, so they are good practice for every employer.

What does procedural fairness look like in practice?

1. Clear, specific allegations in writing: what is alleged to have happened, when, where and involving whom. Vague allegations cannot be answered.
2. Notice of the investigation, how it will run, and expectations about confidentiality.
3. Access to the relevant evidence, or at least its substance, so the respondent can respond to it.
4. A genuine opportunity to respond, with reasonable time, and further enquiries where the response raises new matters.
5. A support person where appropriate. For discussions about dismissal, the Fair Work Commission considers any unreasonable refusal to allow a support person.
6. An impartial investigator with no conflict of interest, who keeps an open mind until all the evidence is in.
7. Reasons for each finding, linked to the evidence.
8. Reasonable timeliness. Long delays harm everyone and weaken the evidence.

What standard of proof applies?

Workplace investigations use the civil standard: the balance of probabilities. A finding is made if it is more probable than not that the conduct occurred. The Queensland Public Sector Commission guide notes that the strength of evidence needed varies with the seriousness of the allegations and the gravity of the consequences, often called the Briginshaw test (from Briginshaw v Briginshaw (1938) 60 CLR 336). The criminal standard, beyond reasonable doubt, does not apply.

What are common procedural fairness mistakes?

The decision in Hatch v WesTrac Pty Ltd [2020] FWC 5729 illustrates several. The Commission found the dismissal unfair after noting that:

• two key witnesses were not spoken to, and inconsistencies in their accounts were not tested
• contested parts of untested handwritten statements were relied on
• assumptions made by the investigators were not put to the employee for a response
• the decision-maker relied on what others told him about the investigation, and some of that information was inaccurate.

Other common problems include investigators who already have a view, allegations that change during the investigation without notice, and reports that state conclusions without reasons.

How do you balance fairness and confidentiality?

Complainants and witnesses often want confidentiality, but the respondent must know enough to respond. A common approach is to give the respondent the substance of the allegations and the evidence relied on, while limiting unnecessary personal details, and to direct all participants to keep the matter confidential. Explain the limits of confidentiality to complainants and witnesses at the start.

How BION Partners can help

BION Partners conducts procedurally fair, impartial investigations, and can advise your team so your own investigations meet acceptable levels of procedural fairness. The BION Audit reviews your process as a whole.

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.

Sources

1. Queensland Public Sector Commission: Managing workplace investigations, a practical guide (2024)
2. Hatch v WesTrac Pty Ltd [2020] FWC 5729
3. Fair Work Act 2009 (Cth) s 387 (AustLII)

Checked 22 October 2026. Laws and guidance change; check the source before relying on it.