From Findings to Practice: A Blueprint for Workplace Investigations in 2026

In 2025 the Fair Work Commission (FWC) and state tribunals delivered a clear and consistent message about what they expect of modern workplace investigations: quality, procedural fairness and post‑complaint risk management are now central to defensible investigations and psychologically safe workplaces.

Employers that invest in consistently rigorous, person‑centred, and fair investigation practices will be better positioned to meet their obligations in 2026 – legally, culturally, and psychosocially. This article explores some of the key lessons from 2025 case law and translates them into a practical workplace investigations blueprint for 2026.

In Sewell v dnata Airport Services Pty Ltd FWC 2823 a flawed sexual harassment investigation led the FWC to find that employee and applicant Ms Sewell had been constructively dismissed resulting in a compensation award of $36,000.

The investigation had several procedural flaws despite some timely initial steps and welfare checks. Two colleagues Ms Sewell identified as people she spoke to straight after the incident were never interviewed. The respondent received a formal written outcome on 21 March 2025 stating that the allegations were unsubstantiated, while Ms Sewell was only verbally told weeks later that her allegations could not be substantiated and did not receive a written outcome until about seven weeks after the respondent. The written letter to Ms Sewell said the employer was “unable to make a finding” for some of the allegations, which conflicted with earlier advice that none of the allegations were substantiated. The investigation also treated conflicting versions as sufficient to deem the complaint “unsubstantiated” without properly weighing credibility, context or other supporting evidence. Further the Commission found that Ms Sewell’s employer failed to implement a safe and reasonable return‑to‑work or rostering plan to address her concerns about continuing to work with the respondent. Overall, Deputy President Beaumont held that Ms Sewell’s resignation was not truly voluntary but was unfair by reason that it was “forced” by the conduct of her employer.

2026 Best Practice Tips

• Interview all relevant witnesses and properly consider and report on credibility, context and available supporting evidence.
• Proactively manage complainant safety during and following the investigation by preparing a tailored safety and return-to-work plans. This includes integrating psychosocial risk controls as part of the investigation (e.g. rostering changes, separation at work, regular check‑ins from management or HR). Consult health and safety experts as required.
• Communicate investigation outcomes to both complainants and respondents promptly, clearly and equitably.

The case of Murphy v Xavier College Ltd FWC 1284 involved a long‑serving teacher whose misconduct provided a valid reason for dismissal, but whose termination was still found to be unfair because the investigation and process denied him procedural fairness, leading to a compensation order of about $14,000.

Communications from the College led Mr Murphy to reasonably form the view that the decision to dismiss had already been made and that he would not receive a fair, unbiased hearing. The Commission found the principal’s dual role as both investigator and decision‑maker to be problematic, especially where there had been prior performance management of Mr Murphy.

Mr Murphy’s dismissal was upheld by the Commission as harsh and unjust due to procedural deficiencies, despite misconduct findings.

In Wilson v BHP Coal Pty Ltd FWC 3412, a long‑serving mining technician employee was the subject of a sexual harassment investigation into alleged inappropriate, sexualised remarks. The investigator substantiated the allegations and ultimately the employer terminated the employee. The Commission held that, despite the valid reason, the dismissal was procedurally unfair; reinstatement was not ordered, but the technician received compensation roughly equivalent to one week’s pay.

Key procedural flaws resulting in an award of compensation included a rushed show cause process whereby the employee was not afforded the standard 7-day period to respond to the allegations, as well as internally sharing draft investigation findings with HR before finalising the investigation report and the underlying time pressures created by the impending sale of the mine.

2026 Best Practice Tips

• Do not let commercial pressures truncate fairness or timelines – let the evidence lead your enquiries and do not take short cuts for the sake of expediency.
• Ensure genuine independence: avoid using investigators who are embedded or closely connected to management; do not circulate draft findings to HR or decision makers for “editing”.
• Remember that a valid reason ≠ fair dismissal: even where substantiated conduct meets the policy requirements and legal definition, procedural defects can still result in unfair dismissal.

Ms Williams, a Clinical Midwife at Kingaroy Hospital, was accused of improperly accessing patient records through Queensland Health’s clinical information system, The Viewer. Following an audit, the employer alleged she accessed records of patients to whom she was not providing care. A show cause notice was issued, and the matter proceeded to a disciplinary finding of misconduct. Industrial Commissioner O’Neill found that the process leading to the disciplinary finding was procedurally flawed and not fair or reasonable.

Key considerations included: lack of access to records, insufficient particulars in the show cause notice, relying on an electronic desktop review and failing to properly test paper-based records, and disputed factual assumptions requiring further investigation around whether discharge summaries were routinely sent to the Hospital when patients birthed elsewhere. The QIRC set aside the disciplinary finding and returned the matter to the decision-maker for reconsideration, with directions to consider Ms Williams’ further submissions.

Drawing these threads together, your 2026 workplace investigations blueprint should include the following:

Pre-Investigation Planning

✓ Conduct conflict-of-interest checks as soon as practicable.

✓ Document clear scope, methodology and timelines.

✓ Create safety plan including psychosocial risk controls.

Evidence Gathering

✓ Interview all identified witnesses promptly, including those named by the complainant / respondent as present.

✓ Provide respondents / complainants access to relevant evidence (e.g., records, desktop data), subject to appropriate confidentiality safeguards.

✓ Test assumptions via direct evidence (e.g., paper records, system processes).

Analysis and Reporting

✓ Weigh credibility, context and supporting evidence explicitly; do not automatically deem an allegation “unsubstantiated” on conflicting accounts.

✓ Do not share the investigation report with other internal stakeholders until finalised.

Communication and Outcomes

✓ Issue prompt, equitable written outcomes to both the complainant and respondent.

✓ Allow for realistic response periods for the allegations and show cause process.

✓ Use neutral language in all communications with investigation participants.

✓ Proactively implement tailored return-to-work/safety plans, consulting health and safety experts as needed.

If you have questions or concerns regarding workplace investigations, please contact us below and one of Workplace Strategists will be in touch within 24 hours.