HR and legal experts explain how positive duty and procedural fairness collide during live investigations like the Swans case
The Sydney Swans' decision to stand down five Australian Football League (AFL) players for the remainder of the 2026 season – after a report of sexual assault at a Melbourne hotel on 17 August 2026 – has become the sharpest live test yet of how Australian employers should balance positive duty obligations, procedural fairness and a code of conduct while a police investigation is still running.
Victoria Police confirmed it was investigating the alleged incident, and it has not been suggested that any of the players face allegations of committing the assault themselves.
For HR leaders, the case is less about football than about a question every organisation eventually faces: what do you do when misconduct allegations surface, the facts are still emerging, and the criminal process could take months or years to resolve?
Internal action doesn't have to wait for police
Sarah Wood, workplace partner at Clyde & Co, says employers are not obliged to freeze their own processes while criminal proceedings play out.
"It is not uncommon for employers to run their own internal process while a police investigation is underway. The key is ensuring the organisation does not interfere with the criminal investigation while continuing to manage workplace risk and meet its obligations to employees."
Wood points to a critical legal distinction that HR practitioners often need to explain to executives: police must prove a criminal offence beyond reasonable doubt, while an employer's internal findings are assessed on the balance of probabilities – a much lower threshold. "They are quite different. They're important distinctions," she says.
That gap is precisely why organisations can, and often should, move faster than police. "The organisation will be doing its own investigations. It may be speaking to witnesses, it may be speaking to the employees involved... it may have access to information earlier," Wood says.
But speed cannot come at the expense of rigour. "Procedural fairness is also important, and making decisions that will be defensible down the track is also very important. Even if there's pressure to make decisions early, an employer or an organisation always needs to have the evidence to support its decisions."
Delay carries its own risk, too. Wood notes that prolonged, unresolved investigations are themselves a psychosocial hazard for everyone involved, not just the accused – a point this masthead has previously examined in relation to the Australian Human Rights Commission's positive duty guidance, which requires employers to take reasonable and proportionate measures to prevent harm rather than simply respond to it after the fact.
A code of conduct is only as strong as how it's used
Where Wood addresses the legal mechanics, Tracey Broers, group general manager risk at SKG Services, argues the deeper issue is cultural: a written code of conduct means little unless it is genuinely understood and consistently applied.
"A good Code of Conduct should tell people, in clear and practical terms, what the organisation stands for, what it expects of them and what behaviour will not be accepted," Broers says.
Signing the document is not the same as absorbing it. "A signature demonstrates that a document may have been provided. It does not demonstrate that someone understands it or knows how to apply it when faced with a real workplace situation," Broers says, adding that induction, toolbox talks and manager-led conversations do far more to embed expectations than an annual email ever will.
Broers also names the failure mode that turns a policy gap into a crisis: a double standard. "One of the biggest gaps is assuming that having a Code of Conduct means the conduct risk has been managed. Employees notice very quickly if there is one standard for frontline employees and another for senior people. Values only have credibility when they apply regardless of position."
That observation lands directly on the Swans case, where five high-profile, well-remunerated players are now facing the kind of scrutiny few organisations apply evenly across all levels of seniority.
For Broers, the test of any code is not the document but the response when it's tested. "The real test is what happens when values are challenged," she says – echoing the standard Safe Work Australia's national code of practice sets for managing sexual and gender-based harassment as a workplace safety risk, not merely a disciplinary matter.
Together, the two experts point to a consistent message for HR and risk teams handling high-profile misconduct allegations: get early legal advice, run investigations in parallel with, not in place of, any police process, apply the code of conduct evenly regardless of seniority, and don't let the desire for certainty become an excuse for delay.
As Wood puts it, that delay "is not good for the mental health of anyone involved."
