The decision to conduct a workplace investigation most often arises from an employee complaint. Such a complaint will often contain accusations that may harm a person’s reputation, leading to a risk of the subject claiming defamation.

 

If the employer decides to investigate a complaint, defamation should be addressed with parties involved in the investigation as a matter of confidentiality. Details of the investigation should be kept private, with only those involved knowing what allegations have been made and what evidence has been given.

Fortunately, it is uncommon for a personal defamation case to get off the ground if an investigation is conducted fairly and objectively and confidentiality is properly observed. The ability to keep information and accusations private is part of a fair process and should be communicated to all employees as such, with the necessary action taken should breaches be discovered.

As long as participants in investigations, including complainants, respondents and witnesses do not recklessly ignore the confidentiality provisions, and provide honest testimony, the risk of a defamation claim against an individual is low. Statements and evidence given would fall under the protection of “Qualified Privilege” where a person shows their duty or right to share or receive those details and that the information is relevant to the business at hand. Witnesses and other investigation participants should be informed of this to allay unnecessary anxiety.

A defamation case would involve the injurious remarks being shared with more than just those involved, such as the parties and workplace investigator. In situations when defamation action occurs, it may be as a result of witnesses’ statements being shared with the wider workplace, either intentionally or accidentally.

To avoid fear of reprisal when making a complaint, or concerns around defamation when involved in a workplace investigation, it is important that staff understand who to turn to when they have a complaint and the process that is to be followed. This will minimise the risk of allegations being spread throughout the workplace before reaching the ears of the HR manager.

Any person involved in an investigation should understand the damage that breaching confidentiality could do; compromising the investigation, reputational damage and potential disciplinary consequences for a worker found in breach of confidentiality provisions. It must also be understood that confidentiality breaches and defamatory comments are risks inside and outside the workplace, including conduct on social media.

As noted in a recent article from HC Online, truth is also a defense to a defamation claim, albeit harder to prove. This highlights the importance of all those involved being truthful in their submissions during an investigation.

 

Working with a suitably experienced independent workplace investigation team will ensure investigators understand the legal risks and regulations involved with the task. iHR Australia can offer a qualified and impartial team of investigators with the skills to deal sensitively with workplace complaints.

Recent articles

Balance of probailities

Understanding Balance of Probabilities in Workplace Investigations

Author - John Boardman, Director Workplace Relations The more serious the allegation, the more serious consideration should be given by...
Remote or isolated work

The impact of poor support on remote and isolated workers: Summary of the webinar

Remote and isolated work encompasses more than just working in a home setting; it taps into the narrative of employees...
Reasonable management.

What isn’t Workplace Bullying? Reasonable Management.

Article updated on 15 April 2024 [Originally published in 2017] Workplace bullying is an organisational problem. It can happen in...
Trauma informed investigations

Trauma-informed workplace investigations: Prioritising ‘care’ over rigid processes

Interviewee: Kirsten Hartmann, Senior Workplace Relations Adviser/Workplace Investigator In August 2023, the Australian Human Rights Commission (AHRC) released four guiding...