Australia: Workplace scandals: some lessons for employers

It is becoming too common that workplace scandals are played out in the media. Business is forced to scramble in response. Many interests and responsibilities compete in the desire to contain the damage and move on. Such circumstances present challenging times for a business.

In this bulletin, we examine two recent, yet contrasting scandals, and identify some lessons for employers when investigating workplace complaints.

Ball tampering ... responding swiftly

Unless you have been living under a rock, you would be aware that Australian cricket team is in turmoil. The Australian captain and opening batsman have admitted to ball tampering in a Test Match against South Africa. The captain and vice-captain have been suspended for 12 months, and the opener for nine months. There will likely be more casualties along the way. This as an embarrassing disaster for Australian cricket but an interesting case study in workplace investigations.

For the benefit of the rock-dwellers, let's look at the facts. The opening batsman was caught on camera using sand paper to try to "scruff" up one side of the cricket ball. In theory, this would help the Aussie fast bowlers develop 'reverse swing', to get the South African batsmen out more quickly. The problem? First, it didn't work. Australia lost the match. Second, and much more importantly, ball-tampering is against the "laws" of cricket. At the end of the day, the players deliberately cheated to gain an unfair advantage, and then tried to cover it up.

Cricket Australia's response may not be perfect, but it was swift. CEO James Sutherland announced that the Head of Integrity was immediately hopping on a plane to South Africa to "get to the bottom of this and ... take appropriate action." Less than a week later, we have initial outcomes.

So what can employers learn from Cricket Australia's approach?

There has been no external investigator appointed. There are no formal terms of reference. Cricket Australia is not over complicating matters with an independent and time consuming formal investigation. There is no process of presenting allegations before anyone is questioned. Cricket Australia has got to the scene and is exercising its right to ask questions. It is the simple and effective approach of 'tell us what happened'.

Workplace investigators may say Cricket Australia's approach is unusual. The more common response is an employer launching a thorough independent investigation, with external investigators. Procedural fairness and more procedural fairness. The process is drawn out and expensive. It is adversarial and stressful for everyone.

The simple purpose of any workplace "investigation" is to discover the facts or information in a timely manner. It is permissible to go straight to the employee and ask them to tell you what happened. Employees must answer questions relating to their employment and duties.

Cricket Australia's fast, straight-to-the-point approach, can be commended. It is dealing with the scandal promptly and moving forward.

#metoo ... another investigation

The (former) Lord Mayor of Melbourne, Mr Robert Doyle, was confronted in late 2017 with allegations of sexual harassment by two female councillors. It became front page news about how he inappropriately touched the councillors. The City of Melbourne engaged Queen's Counsel to conduct an investigation.

It was March 2018 when the outcome of the investigation was released to the public, although Mr Doyle had already resigned. Unfortunately for all involved, the process had been drawn out and, no doubt, expensive. Eventually, some of the allegations were substantiated.

Perhaps the process was justified. Serious allegations of sexual harassment can be career destroying. Equally, the complainants deserved dignity and respect for speaking up. But how does one decide if the allegations are substantiated?

According to SBS: "The investigation used what is known as the "Briginshaw standard" which requires them to be "reasonably satisfied" of specific allegations. It is a lower standard of proof than the criminal standard which is proof beyond a reasonable doubt". Is this a reference to a new standard of proof?

The infamous Briginshaw standard represents probably one of the biggest problems with workplace investigations. The case of Briginshaw v Briginshaw merely described the thinking process for a court in determining serious allegations. And yet, this Briginshaw standard is routinely applied in workplace investigations where it has no place.

Applying the Briginshaw standard to workplace investigations fails to recognise the differences between the function of a court, and that of an investigator (as well as their different experiences, skills and qualifications). It can lead to mistakes by an investigator, and more often than not, allegations are left unsubstantiated in circumstances where they may very well have occurred. Indeed, it could be said that the Briginshaw standard discourages complainants from speaking up.

Our simple tip

Workplaces are not courts. Investigators are not judges. Don't get tied up in the Briginshaw standard and the other technicalities of litigation.

If your workplace faces an allegation, ask questions, examine documents and get to the bottom of the matter. Think carefully when making conclusions about what happened, and be ready to explain your reasoning and conclusions. Make a decision as to what follows and then 'bat on' with what you do best – running your business!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions