Your investigation timeline just became a legal minefield
Australian court finds investigation delays themselves may constitute adverse action, even when employer has valid misconduct concerns.
A timber company's three-month investigation delay became its biggest legal problem, despite having solid misconduct evidence against the employee.
The Federal Circuit and Family Court of Australia ruled on January 28, 2026, that HVP Plantations' drawn-out investigation process could itself constitute adverse action under workplace laws, even though the employee in question had admitted to secretly recording colleagues and appeared to have backdated medical certificates.
Paul Paisley started as a Safety Partner at HVP Plantations on July 23, 2025, hired on a six-month fixed contract. The company preferred someone living closer to its Gippsland office, and Paisley's 100-minute commute from Seaford meant the role was always meant to be temporary while they sought a permanent replacement.
By early October 2025, Paisley had contacted the Fair Work Ombudsman asking about his fixed-term contract. Shortly after, on October 15, 2025, the company sent him a misconduct letter citing hostile behavior toward colleagues and his failure to attend a required meeting with his manager.
After an investigation meeting on October 20, 2025, the company suspended Paisley without pay on October 30, 2025. Then things slowed to a crawl.
The investigation stretched on for over 100 days. Evidence the company had gathered between November and December 2025 was not shared with Paisley until January 20, 2026, a mere ten days before his contract expired.
Judge Johns questioned this timeline. The court found that when you suspend someone without pay, you need to move faster. The judge described the delay as "bewildering" and noted the investigation should have been expedited given the financial impact on Paisley.
The case gets complicated because both sides behaved badly. Paisley admitted to covertly recording workplace conversations, provided what looked like backdated medical certificates, and during the court proceedings continued breaking company rules. He tried ordering work boots on the company account while suspended and told external organizations he still worked for HVP.
Yet the company's slow investigation process overshadowed these issues. The court found three aspects of the company's response could amount to adverse action: launching the misconduct proceedings, suspending without pay, and the excessive delays in concluding the investigation.
The company provided no evidence about who decided to suspend without pay or why that option was chosen over suspension with pay. This gap mattered. The court noted the timing looked suspicious, coming so soon after Paisley contacted the Fair Work Ombudsman.
Paisley's application was ultimately dismissed, but not because the company acted properly. Instead, the court found he came to court without "clean hands," having flagrantly breached lawful workplace directions throughout the process.
What this means for anyone managing workplace investigations is clear. When misconduct proceedings follow employee complaints to regulators, expect courts to scrutinize your timelines closely. Suspension without pay draws more scrutiny than suspension with pay. Document who makes decisions and why. And don't let investigations drift, especially for straightforward matters.
The court found the 100-day delay unexplained. That lack of explanation became evidence against the company, regardless of the validity of its original concerns.
Paisley's contract expired on January 30, 2026. His substantive claims may still proceed to trial.
