When Workplace Misconduct May Also Be a Criminal Matter

It is not uncommon for a complaint, disclosure, incident or other misconduct issue to also involve alleged criminal conduct connected to the workplace.

This can arise in many contexts, including alleged theft, fraud, assault, threats, stalking, drug-related conduct, sexual misconduct, or conduct involving children, clients, students, patients or other vulnerable people.

In our work at Riskwise, this issue most often arises in safeguarding matters, serious sexual misconduct and fraud/corruption investigations, and incidents occurring at work-related events where alcohol is involved.

The early question is often difficult:

How does an organisation meet its workplace, WHS, safeguarding or regulatory obligations without compromising a potential police investigation?

Internal Investigations are Not Criminal Investigations

An internal investigation should not be directed to determining whether someone is criminally guilty. That is a matter for police, prosecutors and the criminal justice system.

However, the fact that conduct may be criminal does not automatically mean an organisation has no role to play. The same facts may raise different questions.

Police may need to consider whether a criminal offence has been committed.

A regulator may need to be notified and consider whether regulatory action is required.

An employer/organisation may need to manage immediate risk, preserve evidence, support affected people, comply with reporting obligations, and determine whether there has been a breach of policy, Code of Conduct, professional standards or employment obligations.

Those processes may overlap. But they are not the same.

Misconduct Vs Criminal Conduct

The decision in University of Queensland & Anor v Y [2020] QCA 216 is a useful example of the distinction between criminal responsibility and internal disciplinary responsibility.

The case concerned allegations of serious sexual misconduct between students. The university considered the complaint under its student misconduct framework and imposed disciplinary action. The accused student challenged the process, arguing, in effect, that the matter was criminal in nature and should not have been determined by the university.

Although the appeal was ultimately dismissed on other grounds, the Court of Appeal rejected the broader “police matter” approach. It accepted that the university could not determine criminal guilt, but recognised that the same underlying conduct could still be investigated and considered as a potential breach of the university’s own rules, policies and procedures, provided the process remained within the university’s authority and afforded procedural fairness.

The practical distinction is that criminal and disciplinary processes serve different purposes and apply different standards. Police and prosecutors consider whether a criminal offence can be proven beyond a reasonable doubt. A disciplinary process, in most instances, considers whether, on the balance of probabilities and having regard to the seriousness of the allegation, the conduct occurred and breached a policy, Code of Conduct, professional standard, workplace expectation, or duty. The internal process should therefore be framed exclusively around the organisation’s own standards, not as an investigation into criminal responsibility.

This is why the existence, commencement or outcome of a criminal process does not necessarily determine the outcome of a workplace or internal process, nor does it necessarily discharge an organisation’s own obligations. A person may be acquitted, not charged or not prosecuted because the criminal standard cannot be met. However, an organisation may still need to manage risk, maintain safety, preserve evidence, comply with regulatory obligations and determine whether internal standards have been breached.

For example, physical violence or abuse in the workplace may not be charged or proven as a criminal assault but may still be found to have occurred on the balance of probabilities and to have breached a workplace policy. The workplace question may also be broader than the criminal question. It may include whether the conduct created a health and safety risk, contributed to an unsafe work environment, formed part of repeated unreasonable behaviour, involved misuse of authority, breached professional boundaries, or was incompatible with the person’s role.

A recent Australian illustration is the Brittany Higgins / Bruce Lehrmann defamation proceedings, formally Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369. Mr Lehrmann’s criminal trial was discontinued without a verdict. However, in later civil defamation proceedings, the Federal Court considered the same underlying allegation in a different forum, under a different standard of proof, with different evidentiary rules and different consequences. Justice Lee found, on the balance of probabilities, that Mr Lehrmann raped Ms Higgins, while making clear that this was not a finding of criminal guilt or a criminal conviction. Mr Lehrmann’s appeal was later dismissed.

While the Lehrmann matter is not a workplace investigation case, it illustrates the same practical distinction. The same factual circumstances may appropriately be considered in different forums, under different standards of proof, and under different evidentiary rules and procedures. Evidence that is inadmissible, insufficient or not determinative in one forum may still be relevant and capable of being given weight in another, depending on the applicable process.

The key point is that an organisation must not make findings of criminal guilt, but it should also not treat police involvement or the absence of a charge or conviction as a reason to take no action. Its role is to consider what steps are required under its own workplace, safety, safeguarding, regulatory or policy framework.

This does not mean that an internal process should proceed without limits or without regard to the criminal process. As discussed below, careful planning may be required in relation to police liaison, evidence preservation, procedural fairness, respondent interviews, lawful and reasonable directions, and any issue of self-incrimination. The point is not that an organisation should simply press ahead, but that it should identify which steps can be properly and safely taken to meet its own obligations.

When Should Workplace Misconduct Be Reported to Police?

One of the first issues to consider is whether police or another external body must be notified.

In some matters, there may be a mandatory reporting obligation. That obligation may exist even if a complainant or impacted person does not wish to report the matter themselves.

In other matters, there may be no obligation to report the matter to the police. However, the complainant or affected person should still be informed that the alleged conduct may constitute a criminal offence, that they have the option to report the matter to the police, and that appropriate support can be provided to assist them in doing so. They should also be reassured that a decision not to report the matter to the police does not prevent the organisation from considering and, where appropriate, investigating it through its own workplace safety policy or regulatory processes.

Police Liaison in Internal Investigations

Where police may need to be notified, the question should not simply be:

“Can we investigate?”

A better question is:

“We have workplace, safety, safeguarding or regulatory obligations to manage. What steps can we safely take now without compromising any police investigation?”

That distinction matters.

Police may wish to take the first formal statement, interview particular witnesses, preserve evidence, or delay notifying the respondent until certain investigative steps have been taken.

Early police liaison can help an organisation understand what it can safely do, what should wait, and what needs to be documented.

In specialist external investigation work, such as at Riskwise, there is often the benefit of investigators with backgrounds in policing and criminal investigation. They are generally familiar with preserving evidence, managing disclosures, avoiding contamination of witness accounts, and communicating with police about what investigative steps can safely occur.

That is not always the case for organisations managing these matters internally.

As a former detective and now workplace investigator, I have seen how unclear the early stages can be. Police may not be able to give an immediate answer about whether they will investigate, what steps they intend to take, or when an organisation may safely commence or continue its own process.

Equally, police may not always have a detailed understanding of the organisation’s employment, workplace safety, regulatory or safeguarding obligations, or how internal investigations are conducted.

That is why the conversation with police needs to be clear, practical and well-documented.

This is where an external investigator with the right background can add significant value. In matters involving possible criminal conduct, the organisation must be able to manage risk, preserve evidence, support affected people, and comply with workplace, regulatory, or safeguarding obligations, without overstepping into matters properly reserved for the police.

The right investigator can help manage that interface and keep the internal process focused on the questions the organisation is responsible for answering.

Preserving Evidence and Managing Disclosures

Where a complaint discloses potential criminal conduct, preserving the integrity of the evidence is critical.

This may include documents, emails, CCTV, messages, rosters, access logs, incident reports, photographs, medical records, file notes or other contemporaneous material.

It may also include preserving the integrity of witness accounts.

If police intend to investigate, they will likely want to interview the complainant or key witnesses first. They may not want accounts influenced by repeated internal interviews or discussions with multiple people.

However, sometimes the criminal nature of the conduct only becomes clear during an internal interview. A person may begin by describing a workplace conflict, boundary issue, safety concern or misconduct complaint, and then disclose conduct that may be criminal.

In those circumstances, it is often appropriate to pause or suspend the interview/discussion.

That pause does not indicate that the matter will not be investigated. It allows the organisation to consider reporting obligations, give the person the opportunity to report the matter to the police, and seek guidance about whether continuing the interview may compromise a criminal process.

It may also reduce the risk of a complainant or witness being required to repeatedly retell distressing or traumatic events.

In matters involving children, people with disabilities, or other vulnerable people, this is particularly important. An organisation should generally obtain only the information necessary to understand the immediate concern, meet any mandatory reporting or safeguarding obligations, and manage immediate safety risks. It should avoid going further into the detail of the allegation until police, the relevant regulator or another appropriate external authority has been consulted.

Using Police Statements in Internal Investigations

In some cases, a further internal interview may not be appropriate.

For example, a complainant may have already provided a detailed police statement and may not wish to repeat their account again.

Where lawful and appropriate, the organisation may ask whether the complainant is willing to provide a copy of that statement for the internal investigation.

A police statement will not always answer the same questions an internal investigator needs to answer. Police are generally focused on criminal elements, the rules of evidence, admissibility and proof beyond a reasonable doubt.

An internal process is usually focused on conduct, context, policy, risk, employment obligations and the balance of probabilities.

However, where a further interview is not appropriate, a police statement may still be better than having no direct account at all.

Interviewing the Person Under Investigation

Where the person under investigation is an employee, the organisation may be able to give a lawful and reasonable direction requiring them to attend an interview and answer questions about work-related conduct. In matters involving potentially criminal conduct, that step should be considered carefully, including whether police have been notified or consulted and whether the interview may affect any criminal investigation.

Even where such a direction may be available, the obligation has limits. The privilege against self-incrimination may arise where an answer may expose the employee to criminal liability. In broad terms, this means care is required before compelling an employee to answer particular questions or treating a refusal to answer as misconduct, where that issue has been raised or is relevant.

This does not mean the employee can simply refuse to cooperate. The issue is more specific: whether answering a particular question may create a real risk of self-incrimination.

If self-incrimination is raised during an interview, the issue should be recorded and managed carefully. The investigator should not try to resolve complex privilege issues on the spot. Depending on the circumstances, it may be appropriate to note the refusal, move to other questions, pause the interview, seek legal advice, or consider whether any police involvement affects the timing or scope of further steps.

This is another area where an external independent investigator with an appropriate background can add real value. An investigator who understands both workplace investigation principles and the criminal process can help plan the interview, identify risk points, avoid overstepping, and keep the internal process focused on the organisation’s own workplace, safety, safeguarding or regulatory obligations.

Avoiding Criminal Language in Investigation Reports

Care is required when drafting findings in an internal investigation report.

Terms such as "assault" and "sexual assault" have specific legal meanings. They may also be used by complainants or witnesses as broad descriptors when describing what they say occurred. That language should not be ignored, particularly when it is relevant to understanding the complaint or to determining whether police involvement is required.

However, an internal report should distinguish between recording a person’s account and adopting a criminal label as a finding.

The language used by a complainant or witness can be accurately recorded, particularly when it is relevant to understanding the complaint or to determining whether the police or another external body should be notified. However, the allegations, analysis and findings should describe the specific conduct alleged or found to have occurred, and then assess that conduct against the relevant workplace policy, Code of Conduct, professional standard or safeguarding obligation.

For example, an employee may report that they were “assaulted” by another employee at a work-related event. That language may need to be recorded as part of the complainant’s account. However, the allegation to the respondent and any finding should ordinarily describe the conduct itself, such as whether the respondent punched, pushed, grabbed or threatened the complainant, rather than adopting the criminal label of “assault”.

The same applies to sexual misconduct or harassment matters. A complainant may describe conduct as “sexual assault”. That description may be relevant to understanding the complaint and any police or reporting considerations.

It may be tempting, particularly for reasons of sensitivity, to use a general descriptor such as “sexual assault”. However, any descriptor used in an internal report should not imply a finding of criminal guilt. The report should identify the specific conduct alleged or found to have occurred, and then consider whether that conduct amounted to sexual harassment, sexual misconduct, a breach of professional boundaries, a safeguarding concern, or another policy-based form of misconduct.

This is not about softening serious conduct. It is about precision, procedural fairness and staying in the correct lane.

An internal report should not try to answer whether a criminal offence occurred. Its focus should be on the specific conduct alleged, the actual actions said to have occurred, and whether that conduct breached the relevant workplace policy, rule or standard.

Key Takeaway

The fact that conduct may be criminal does not automatically mean it is only a police matter.

However, if an organisation investigates, it must be clear about the question it is answering and the limits of its role.

Police investigate alleged criminal offences. Regulators oversee compliance, safeguarding and regulatory obligations. Employers and organisations manage risk, workplace obligations, policy compliance, and the safety of people within their organisations or services.

Those processes may overlap, but they are not the same.

An organisation should not make findings of criminal guilt. Equally, it should not take no action merely because conduct may be criminal, has been reported to police, or has not resulted in a charge or conviction.

The task is to plan the internal response carefully, manage any interface with police or regulators, preserve evidence, support affected people, and keep the internal process focused on the organisation’s own obligations.

Author: Riskwise Managing Director Matt Truelove is a highly experienced investigator and workplace consultant with extensive experience leading complex investigations as a former Detective and Senior Investigator in the Australian Public Service.