Approach
As a practical matter, there is no comprehensive “U.S. Approach” to notifying respondents about the fact of an investigation or the allegations raised against them. Unlike the other countries represented here, there is no federal legislation or case law that governs how investigations must be done, let alone what notice is required to the parties. Federal authority for conducting investigations is often interpreted as deriving from case law allowing employers to establish a defence to equal employment opportunity (EEO) claims where they have taken appropriate remedial measures to stop ongoing harassment.2 In the companion cases Faragher and Ellerth, the Supreme Court held that when there is no tangible employment action resulting from the harassment, the employer may assert an affirmative defense if the employer can prove the following elements: 1) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and 2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm. The inference in this line of cases is that an employer cannot take adequate action if they do not know what happened, thereby necessitating an adequate workplace investigation to inform the employer’s remedial actions.
Further, the Equal Employment Opportunity Commission (EEOC) speaks at length in its recently updated regulations about the importance of investigating complaints of harassment discrimination and retaliation.3
Notifying the Respondent of the Investigation and Allegations
While U.S. federal law, and EEOC regulations, indicate the importance of investigating EEO complaints, there is no specific direction on the point at issue here—how to notify the respondent about the fact of the investigation or the nature of the allegations raised against them.
As a practical matter, the “U.S. Approach” is largely dependent on individual employer and investigator practice. However, some U.S. states have specific statutes addressing this issue for certain categories of employees, but those statutes are not federal in nature.
Anecdotally, employers vary in how they address this issue internally. The authors are aware of at least one
As a practical matter, the “U.S. Approach” is largely dependent on individual employer and investigator practice.
employer who notifies the respondent of the fact of the investigation 15 to 30 minutes before the interview4 when they put a hold on the respondent’s calendar. The respondent receives no information about the allegations until the start of the interview.
Other employers, also anecdotally, have more formal processes where they notify the respondent of the fact of the investigation, that they have been identified as a subject, and that they should take no actions that could be viewed as retaliatory. Still, the respondent knows nothing about the allegations until the start of the interview.
Finally, other employers, and this is likely more common for public sector employers, provide notice of the investigation and a vague statement that the subject has been accused of harassing or discriminatory conduct in violation of the employer’s policies. For example, in California, police officers and firefighters, respectively, are protected by “bills of rights” that require subjects of investigations to be informed of the nature of the investigation before the interview. As an example, POBR states, “when any public safety officer is under investigation and subjected to interrogation by his or her commanding officer, or any other member of the employing public safety department, that could lead to punitive action … (c) The public safety officer under investigation shall be informed of the nature of the investigation prior to any interrogation.”
The Right to Respond to Allegations
However, regardless of how subjects are notified of the investigation and the allegations against them, there is consensus in the U.S. that subjects should have a full opportunity to respond to the allegations against them. This principle is captured in AWI’s Guiding Principle Eight, which states, in part, the “respondent should be provided with an opportunity to present their positions and to correct or challenge relevant statements contrary to their positions. The investigator should seek specific admissions or denials as to each allegation.”5
II. The Australian Approach
There are many similarities between how investigators approach the investigation process in Australia, the United States, New Zealand, and Canada. All jurisdictions focus on core guiding principles. This includes being thoughtful about who should conduct the investigation, ensuring a deliberate and thorough approach to gathering evidence, and carefully analyzing the reliability of evidence and credibility of witness statements.
In Australia, employers have a legal duty to provide a safe workplace, as mandated by the Work Health and Safety (WHS) legislation. This duty extends to managing risks associated with psychosocial hazards, particularly during workplace investigations. The Model Code of Practice: Managing Psychosocial Hazards at Work (Model Code of Practice) offers practical guidance on fulfilling this obligation, emphasizing that investigative processes must be fair, transparent, and timely. Case law further highlights the importance of conducting investigations in a manner that does not expose employees to psychological harm.
Respondent Notice Requirements in Australia
A “fair go” is a revered notion in Australian workplaces and society more broadly. When notifying a respondent of alleged wrongdoing, a “fair go” means a fair and reasonable opportunity to understand and respond to the allegations.
What this looks like in practice varies depending on the circumstances, including the number, complexity, and seriousness of the allegations, and the respondent’s circumstances (such as access to relevant documents, their health, and any communication difficulties).
While some organizations are bound by policies or collective agreements that contain specific steps to ensure procedural fairness, in general, a fair process involves the following notice considerations.
1. Notice of the Investigation
In Australia, there is no standard rule about when a respondent must be notified of an investigation. Often Australian employers notify a respondent as soon as practicable after it decides to investigate a complaint. For example, respondents employed in the Australian
Public Service “should be notified at the earliest reasonable time of the decision to start a misconduct investigation…”.6 The initial notification usually includes a brief description of the alleged wrongdoing, that the employer intends to provide further details in the future, and an assurance that the respondent will have an opportunity to respond.
In some cases, an employer may delay notification until after the complainant and witnesses are interviewed, which has the benefit of allowing the employer to assess if the evidence warrants further investigation. This approach can shorten the period the respondent must wait to be interviewed and may minimize the stress experienced by respondents awaiting detailed allegations.
As part of developments in WHS legislation and the practical guidance provided by the Model Code of Conduct, Australian employers have become more aware of the importance of communicating with respondents in a way that minimizes the risk of harm. This includes being clear about the investigation process and taking a trauma-informed and culturally safe approach to communications.
2. Notice of Allegations
Australian employers are required to provide a respondent with the allegations in advance, including sufficient details to enable the respondent to understand what it is alleged they have done wrong. This is generally provided by way of written allegations in advance of an interview. Written allegations state the alleged factual wrongdoing but may not include all relevant particulars. Further details regarding the allegations are provided during the interview. This includes sensitive information that may disclose the identities of witnesses. There is some flexibility in how the details are shared with the respondent as long as the respondent is clearly informed of the allegations against them and given an opportunity to respond to adverse evidence.
Absent a directive, policy, or collective agreement that applies, there is no minimum time frame that a respondent should be given to attend an interview and/or provide a written response to the allegations. Procedural fairness considerations inform what is defined as a reasonable timeframe. If the alleged wrongdoing is fairly narrow in scope, 24-hour notice might be appropriate. In contrast,
a lengthy suite of complex allegations would generally require a longer period to enable the respondent to prepare for the interview or provide a written response.
3. Opportunity to Respond
Most often, a respondent is provided with written allegations and then invited or directed to respond to the allegations at the interview with the investigator. This includes an opportunity to respond to adverse evidence that is relevant and credible. Interviews are sometimes supplemented by follow-up interviews or by a written response. Occasionally, a response might exclusively be in writing if, for example, a respondent is medically unfit to participate in an interview but has clearance to prepare a written response.
III. The New Zealand Approach
As illustrated by New Zealanders’ strong interest in AWI’s Institute Training, there is considerable commonality in the practice of investigating in the United States and New Zealand. Techniques for interviewing, the provision of appropriate admonitions, and best practice in report writing are all directly applicable between jurisdictions.
For all of this “same, same,” however, there are differences in the law. Some of the primary differences are in how an investigation is initiated and how the subject of the investigation is notified of the allegations against them.
Initiation of the Investigation
Generally, an employer should instruct the investigator by providing a (written) Terms of Reference at the outset of the investigation process. Its primary purpose is to state, in express and neutral terms, the issues that are sought to be determined by way of the investigation (which is often referred to as the “scope” of the investigation).
Techniques for interviewing, the provision of appropriate admonitions, and best practice in report writing are all directly applicable between jurisdictions.
The Terms of Reference may also include (or attach) other things, including the following:
• Where the investigation has been initiated as a result of the receipt of a complaint, the documented complaint may be attached to the Terms of Reference.
• Any workplace policies relevant either to the allegations made, or to the process required to be followed to investigate them, should also be attached. This could include a disciplinary investigation policy, a bullying/harassment policy, and/or a code of conduct.
• A timeframe for the Investigation.
• Whether, and when, the employer would like to receive progress updates from the investigator.
Notice of Investigation/Allegations
The employer should notify each of the Complainants and Respondents about its decision to investigate. It should inform them about the identity of the Investigator, and provide each with a copy of the Terms of Reference and any accompanying documentation (so that they have all information being provided to the Investigator).
Practically, this means that the investigation process should commence from a position of information parity— the parties and investigator begin the investigation with the same information. This also serves to notify the parties (and investigator) about the allegations which form the basis of the investigation, and which the investigator is asked to consider and determine.
Natural Justice
Under New Zealand law, workplace investigations must be conducted in accordance with the principles of natural justice. Broadly, this requires an investigator to be free from actual or apparent bias, and to hear from both sides on a fully informed basis.
To ensure that each party to an investigation process (i.e., both the Complainant and Respondent) can participate on a fully informed basis, generally the investigator must ensure that each party receives the Terms of Reference (and its attachments), and all information gathered by the investigator through the course of the investigation
process. The investigator must ensure that each party has a reasonable opportunity to respond to all this material.
This means that the investigator should not accept information without disclosing it to all parties. Even if the investigator does not consider the new information relevant to their investigation, they should still disclose it to the parties.
There is no definitive method for an investigator to keep a record of information gathered through an interview. However, no matter how the information is recorded, it should be provided to the parties. In addition, any documents received by the investigator, either from the employer or from interviewees (such as emails, meeting notes or correspondence), should also be shared with the parties.
Respondent’s Opportunity to Respond
The Respondent must be given an opportunity to respond on a fully informed basis. The investigator must provide the respondent with a reasonable opportunity to do so, either by meeting with the investigator and/or by responding in writing. The respondent is not constrained in this response, and may provide their own information to the investigator, including anything that the respondent thinks the investigator should know in reaching a view about the matters they are asked to consider.
There is no absolute requirement for an investigator to provide a draft report to the Complainant and Respondent for their comment (prior to the presentation of a final report). That said, it is not unusual for provision of a draft report to be required either in the Terms of Reference, or by a workplace policy—and, as a matter of practice, many investigators provide a draft report to the parties prior to finalizing it.
IV. The Canadian Approach
Canadian federal and provincial legislation generally requires employers to conduct an impartial workplace investigation when there are allegations of violence,
harassment (including bullying), discrimination, or retaliation. Impartial workplace investigations are intended to provide employers with reliable information to make informed decisions that affect peoples’ livelihoods. Not only is an impartial investigation a legislative requirement, but jurisprudence also affirms that complainants and respondents are entitled to a procedurally fair process.
While procedural fairness in workplace investigations is rarely defined by statute or regulation, jurisprudence, codes of practice, and other policy instruments have provided some additional—albeit still limited—guidance. For example, a respondent must be provided a full opportunity to respond to the allegations. In Canada, that requirement has translated into an obligation to provide advance notice of a complaint and written particulars of the allegations to the respondent to avoid “ambush” during an interview.
However, absent express language in the employer’s policy or collective agreement, there is no specified guidance on what constitutes “advance notice” and “particulars of the allegations.” There is a broad spectrum of practice amongst investigators regarding the length of advance notice that should be provided to allow the respondent sufficient time to prepare, the amount of information that is shared in advance of the interview, and the timing of providing any such information. At a minimum, the respondent should be informed of the nature of the allegations, and, in most circumstances, the identity of the complainant. There are also investigators who provide respondents with a copy of the written complaint in advance of their interview.
Counsel for respondents sometimes request not only a copy of the written complaint but also names of witnesses, witness statements, and copies of relevant documents (i.e. emails, text messages) prior to a respondent’s interview. They claim that a procedurally fair process entitles the respondent to know the full case against them in advance so that they have ample time to prepare and respond to the allegations.
There is no statute or judicial decision that establishes a procedural requirement to provide the respondent with all
Every investigator should be concerned with the ethics and fairness of an investigation, including how parties are notified of the investigation.
information before meeting with them. Additionally, there is no obligation to provide the names of witnesses or witness statements to a respondent at any time during the investigation process as long as all contradictory information (to their version of events) is shared with them and they are given a reasonable opportunity to respond.
Conclusion
Ultimately, what each country’s approach demonstrates is a commitment to achieving a fair investigation, though there are certainly differences in how investigators achieve this outcome. While legislation, regulations, and jurisprudence have developed differently in each country, there are lessons to learn from each. Every investigator should be concerned with the ethics and fairness of an investigation, including how parties are notified of the investigation. Further, respondents should be given the opportunity to understand the allegations against them and to fully respond to them. Representatives from all four jurisdictions would agree that anything short of that would not constitute a thorough, fair, and impartial investigation.
Eli Makus is a senior partner with Van Dermyden Makus Law Corporation, responsible for conducting complex and sensitive investigations involving a variety of workplace complaints for public and private employers throughout California. He regularly provides training on employment law topics—including teaching internal and external investigators how to conduct impartial workplace investigations. He is also a past president of the AWI Board of Directors and regularly serves as faculty for AWI’s Training Institute. He can be reached at erm@vmlawcorp.com
Paula Hoctor is a business owner and workplace investigations specialist whose skilled services benefit a broad range of private and public sector clients throughout Australia. Before starting her business Q Workplace Solutions, Paula practised as a lawyer specialising in employment law and professional standards and worked
primarily with Herbert Smith Freehills. As Principal of Q Workplace Solutions, Paula leads a national team of legally qualified and experienced workplace investigation specialists.
Andrew Scott Howman practices as a workplace investigator with Port Nicholson Chambers. He has a background in employment law, and was a partner both at a major commercial law firm and at the Crown Solicitor’s Office in this specialty. He graduated from the AWI Institute in 2016 and co-authored Thomson Reuters’s publication, Workplace Bullying, the same year. He has conducted investigations for both public and private sector entities.
Monica Jeffrey, AWI-CH is a founding partner in JMJ Workplace Investigation Law LLP, one of the first law firms in Canada to devote its practice exclusively to conducting impartial workplace investigations. She was integrally involved in developing the Canadian Chapter of AWI and the accredited certificate program for the Training Institute where she regularly serves as chair, evaluator, and a faculty member. Monica also served as the Chair of the Institute Committee for several years and is the current AWI President.
Endnotes
1 The terms “Respondent” and “Subject” are used interchangeably in this article.
2 Faragher v. City of Boca Raton, 118 S.Ct. 2275 (June 26, 1998); Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (June 26, 1998).
3 See https://www.eeoc.gov/laws/guidance/enforcement-guidanceharassment-workplace
4 The Public Safety Officers Procedural Bill of Rights Act (POBR) was enacted in 1977 and was codified in the California Government Code sections 3300-3313. The Firefighters Procedural Bill of Rights Act (FBOR) was enacted in 2007 and was codified in the California Government Code sections 3250-3262.
5 See https://www.awi.org/page/Guiding_Principles
6 Paragraph 7.53 of the Australian Public Service Commission’s Handling Misconduct—A human resource manager’s guide
AWI ANNUAL CONFERENCE
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The upcoming AWI Annual Conference will held in Atlanta, GA, from November 6-7, 2025.
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Dear Readers,
This special themed issue of the AWI Journal examines the ethical rules that govern our profession, inspired by our colleague and frequent AWI Journal contributor Lindsay Harris, who passed away last year. As noted in last year’s issue 2, Lindsay’s scholarship often explored questions about our role as investigators, including the ethical and legal rules that apply to attorneys, private investigators, HR professionals, and others who may conduct workplace investigations.
The three articles in this issue take on different facets of our ethical responsibilities as investigators. First, our cover piece is by Mark Tuft, an expert in the rules of professional responsibility that apply to lawyers. Mark collaborated with Lindsay Harris in 2011 for a seminal piece published in the AWI Journal, Attorneys Conducting Workplace Investigations: Avoiding Traps for the Unwary. In this new article, Workplace Investigations without Borders, he builds on that work to provide further guidance for attorneys and others conducting investigations across jurisdictional lines.
Next, Tracey Merwise and Ilona Turner pick up on the theme of investigator impartiality that Lindsay Harris and Amy Oppenheimer considered in their 2023 article, Attorneys Conducting Impartial Workplace Investigations: Reclaiming the Independent Lawyer Role. Tracey and Ilona show how impartiality is fundamental to our work as investigators and offer tips to ensure investigations will withstand scrutiny as unbiased.
Finally, a group of collaborators from across four countries—the United States, Canada, Australia, and New Zealand—take up the question of the notice that must be provided to investigation subjects in each legal system. Eli Makus, Monica Jeffrey, Paula Hoctor, and Andrew Scott Howman provide an illuminating comparison of the ethical and legal obligations that apply to investigators in their respective nations, as well as the principles of due process and ethics underlying those rules.
We look forward to seeing many of you at the upcoming AWI conference. If you are interested in getting involved in the Journal, please reach out and let us know.
The AWI Journal Editorial Board
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