Sexual harassment investigations in Victoria: Key investigation tips for employers

For many years, sexual harassment investigations were primarily viewed as exercises in fact-finding. An allegation was made, witnesses were interviewed, findings were reached and, where appropriate, disciplinary action followed.

That approach is no longer enough.

Recent developments in workplace safety and discrimination laws have fundamentally changed the way sexual harassment investigations need to be conducted. Investigators are now expected to navigate an increasingly complex landscape that extends beyond procedural fairness and into the realm of psychosocial safety and workplace risk management.

Psychosocial safety in sexual harassment investigations

Victoria’s new psychosocial safety laws means a sexual harassment investigation may create or increase psychosocial risks, given the sexual harassment allegation itself may be a psychosocial hazard.

As a result, investigators are increasingly expected to consider not only the allegations, but also the impact the investigation process may have on all participants.

This does not mean avoiding difficult conversations or compromising the thoroughness of an investigation. Rather, it means carefully considering matters such as:

• having an independent, impartial investigator using an interview style which is trauma informed to minimise the harm
• the timing of interviews
• the support available to participants
• the duration of the investigation
• communication throughout the process
• whether workplace arrangements need to be adjusted throughout the investigation.

Why procedural fairness still matters

While investigators are increasingly expected to adopt trauma-informed practices and consider psychosocial risks, procedural fairness still remains fundamental. A failure to afford procedural fairness can significantly undermine the integrity of an investigation and create legal risk, particularly where disciplinary action or termination follows.

Investigators should ensure they:

• clearly outline the allegations and provide sufficient particulars to enable a meaningful response;
• give the respondent a genuine opportunity to respond before findings are reached
• approach the evidence with an open mind, avoiding any perception that conclusions have already been formed
• assess competing evidence objectively and impartially, particularly where accounts differ
• balance confidentiality and support measures with a respondent's right to know and answer the case against them.

Employers often face competing pressures when managing sexual harassment complaints. However, an overcorrection in favour of protecting one party can inadvertently create procedural fairness deficiencies for another. Where findings lead to disciplinary action or dismissal, shortcomings in the investigation process can increase the risk of a claim being made by an employee. Ultimately, the stronger the investigation process, the more likely the outcome will withstand scrutiny.

Confidentiality during workplace investigations

In response to concerns about secrecy and power imbalances, sexual harassment investigations have shifted towards requiring greater transparency and empowering victim-survivors to decide whether they wish to speak about their experiences. This shift was reflected in the Victorian government introduction of the Restricting Non-disclosure Agreements (Sexual Harassment at Work) Act 2025 (Vic) which prevents the use of an agreement which restricts disclosure, unless the affected person requests it.

Employees are often more willing to participate openly in an investigation if they have confidence that sensitive information will be handled appropriately and disclosure will be limited to those with a genuine need to know.

Accordingly, the investigation process should:

• limit disclosure of information to those directly involved in the process
• set realistic expectations about confidentiality, recognising it cannot be guaranteed absolutely
• ensure sufficient information is provided to allow a meaningful response to allegations, while minimising unnecessary disclosure
• actively manage the risk of victimisation.

The consequences of a ‘botched’ investigation

A poorly conducted sexual harassment investigation can create significant legal, reputational and workplace risks.

Where investigations are delayed, lack procedural fairness, fail to properly manage confidentiality or unnecessarily expose participants to psychosocial harm, employers may face:

• unfair dismissal claims arising from disciplinary action based on flawed findings
• general protections, discrimination or victimisation complaints
• workers' compensation claims relating to psychological injury
• regulatory scrutiny concerning compliance with workplace health and safety obligations, including psychosocial hazards
• loss of employee trust and confidence in workplace reporting processes
• reputational damage that extends well beyond the individuals involved.

In many cases, the greatest risk is not the complaint itself, but the way the employer responds. A well-planned, legally sound and psychologically safe investigation process can significantly reduce that risk and place organisations in the strongest position to defend their decisions if they are later challenged.

What employers should do now

With increasing scrutiny on psychosocial safety, procedural fairness and workplace culture, employers should review their investigation frameworks to ensure they remain fit for purpose.

Employers should consider:

• reviewing investigation policies and procedures to ensure they reflect psychosocial safety obligations
• training HR teams, managers and investigators in trauma-informed investigation practices
• engaging independent investigators for complex or high-risk matters
• implementing appropriate support measures for complainants, respondents and witnesses
• carefully documenting decision-making throughout the investigation process
• regularly assessing whether workplace controls are required during and after an investigation to manage ongoing psychosocial risks.

Importantly, employers should remember that a sexual harassment investigation is an opportunity to demonstrate a commitment to workplace safety, respectful workplaces and procedural fairness.

At Gilchrist Connell, our Employment and Workplace Relations team regularly conducts or advises employers in relation to independent investigations into sexual harassment, bullying, discrimination and other workplace misconduct allegations.

Bianca Mazzarella is a Principal Lawyer in Gilchrist Connell's Employment and Workplace Relations team and regularly advises employers on workplace investigations, discrimination, bullying and sexual harassment matters.