Policy · Employment & Workplace Relations

Workplace investigation terms of reference, allegation schedule and interview plan

Terms of reference for a workplace misconduct investigation: decision maker, investigator, scope, particularised allegations, standard of proof, procedural fairness, interviews, evidence, confidentiality, AI rules and the report, with an allegation schedule and interview plan.

Kind: Policy. A policy or procedure for a firm or client.
Where it applies: Australia, Commonwealth
AI use: Yellow AI can help in set ways. A lawyer checks specific points before use.
Law stated as at: 18 October 2026
Status: Maintained. Checked on 18 October 2026 against the authority it cites, for Australia and Commonwealth.
Version: 1
Source: Written for this library

When to use it

Use when an employer appoints an internal or external investigator into complaints of misconduct, bullying, sexual harassment or other workplace conduct that may lead to disciplinary action. Settle it before anyone is interviewed. If the investigation is to be privileged, set it up through lawyers as well.

Used for these tasks

Each task page says how far AI may help with the task and what the lawyer must review.

How AI may be used

AI may draft the terms of reference from the complaint and policies, build the allegation chronology from permitted documents and propose interview topics, but the decision maker settles the allegations and the investigator alone assesses credibility and makes findings.

AI may

Draft the terms of reference from the complaint, the relevant policies and the decision maker’s instructions
Build a chronology for each allegation from documents the investigator is permitted to use
Propose neutral interview topics and document requests for each witness, for the investigator to edit

AI must not

Must not assess credibility, weigh evidence or make or draft findings
Must not frame allegations beyond the complaint and evidence, or in language that presumes a finding
Must not transcribe or summarise interviews without consent and an approved tool, or process complaint material in a tool that retains or trains on it

The lawyer checks

Each allegation is particularised (who, what, when, where) so the respondent can answer it
The respondent will be told the allegations and the evidence relied on and given a genuine opportunity to respond, with a support person, before findings (s 387(b) to (d))
The investigator is independent of the matters and the decision maker is separate from the investigator where practicable
The scope does not stray into matters the employer has not authorised, and the report format separates findings from any recommendations on outcome

Method: how the Green, Yellow and Red levels are decided. This is guidance for planning, not legal advice.

Authorities

Fair Work Act 2009 (Cth) s 387 (in deciding whether a dismissal was harsh, unjust or unreasonable: valid reason, notification of the reason, opportunity to respond, support person, warnings, size of enterprise and HR expertise)

Read the full text

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read the whole precedent, with its drafting notes beside it;
copy it, or download it as a Word file or Markdown;
add it to your firm’s knowledge base, so colleagues can find it;
let the AI tools you connect read it from that knowledge base.

The summary, the law it rests on and the AI-use guidance above stay public. Privacy.

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