KEY TAKEAWAYS:
- Organisations must develop clear protocols that respect both the procedural fairness requirements of misconduct investigations and the open disclosure needs of safety investigations to navigate this increasingly complex regulatory landscape.
- As psychosocial safety regulations continue to evolve across Australia, the intersection between workplace and safety laws will continue to increase. Organisations that understand the fundamental differences between misconduct and safety investigations, and develop protocols to manage their intersection, are better positioned to meet their legal obligations while maintaining fair and effective workplace practices.
Merging landscapes
Victoria’s new Occupational Health and Safety (Psychological Health) Regulations 2025, which commenced 1 December 2025, complete Australia’s national framework requiring employers to proactively manage psychological risks in the workplace.
Traditional HR concerns like bullying and sexual harassment are now explicitly recognised as psychosocial hazards requiring safety risk management approaches, blurring the boundaries between HR and safety functions.
Safety practitioners are now venturing into territory traditionally managed by HR and employee relations teams while independent workplace investigators may now find themselves being briefed by safety lawyers.
Yet there are important differences between the requirements for a procedurally fair workplace investigation (in the HR space), and what might be required for a pure safety investigation.
What’s the difference?
It comes down to one key factor – purpose.
Misconduct investigations – what happened?
The primary purpose of a misconduct investigation is to find out the facts so well-informed decisions can be made about potential disciplinary action. These investigations necessarily involve putting formal allegations to respondents for response so findings of fact can be made. Procedural fairness is required given the potential consequences for an individual if adverse findings are made.
Safety investigations – cause and prevention
Safety investigations primarily aim to identify the cause of an incident to prevent future incidents. Systematic methodologies are often employed (for example Incident Cause Analysis Method or ICAM) to identify the cause of an incident and how to prevent future occurrences.
Tension can arise when the same incident or complaint crosses into both areas, possibly triggering the need for two parallel inquiries given the different aims of each.
Managing the tensions
To effectively navigate these tensions, organisations may consider:
- clearly defining and communicating the purpose of each investigation from the outset
- ensuring procedural fairness in misconduct investigations, even when safety issues (and regulators) are involved
- maintaining appropriate documentation that serves the purpose of each investigation type and considering whether there are different confidentiality requirements for each
- good communication between HR/ER and safety teams, developing clear protocols for how information may be shared between different investigation processes.
These considerations become particularly important when safety and misconduct investigations overlap, as findings may be scrutinised from both workplace law and safety law perspectives.
Important considerations for workplace investigators
When navigating the intersection between misconduct and safety investigations, workplace investigators conducting misconduct investigations need to be mindful of protecting procedural fairness – for example, by ensuring that a respondent understands:
- the basis of their participation in the process
- that allegations are being put to them for response (not just comment or information-gathering and report back),
- that the investigator’s findings may have consequences for their employment.
More information
Q Workplace Solutions’ national team of legally qualified and licensed investigators are trusted by public and private organisations, including ASX-listed companies and government agencies, to investigate complex and often highly sensitive allegations of employee wrongdoing. We also undertake workplace reviews, and provide training, coaching and external advisory support to internal investigators.
View and book 2026 investigations training workshops here.
