In Part 3 of our series, we'll look at the standard of proof, the conduct of interviews, how each country aims to protect confidentiality and whistleblowers, and privacy. (Part 1 covers the definition of 'workplace' harassment, investigation scoping and legal privilege. Part 2 covers who forms part of an investigation team, how location affects which laws apply to an investigation, notification and timing requirements).
#7 – What standard of proof is used in investigations?
The standard of proof used in workplace investigations is crucial for determining the outcome of allegations.
The civil standard of proof is consistent across Australia, Hong Kong, Singapore and PRC – if this is applied, then the evidence must show that it is 'more likely than not' that the conduct occurred.
Unless policies, workplace-specific laws or contracts require a different approach, cross-border investigations in these countries can use the same standard when making findings based on the evidence.
#8 – How should interviews be conducted during investigations?
The interview process is a critical component of any investigation. It allows the investigator to uncover details and firsthand accounts in order to understand what occurred.
Witness selection should be based on whether they can be expected to provide relevant evidence. It is best practice to limit the interview list where possible, in order to reduce the risk of the accused's ongoing employment becoming untenable by virtue of too many people knowing about the allegations. In some investigations, it will be necessary to interview a large number of people, given the nature of the allegations, but that is not always the case and careful thought should be given to keeping control of the interview list.
In Australia, for wellbeing reasons, it is best practice to allow a support person to accompany the witness and (in some cases) employers may permit union or legal representation. This is not the case in Hong Kong, Singapore and the PRC, where witnesses are not legally permitted to be accompanied to the interview, neither is it common practice to allow this for wellbeing reasons. Recorded interviews require consent under some laws, ensuring that all parties are aware of and agree to the recording. Where recording is not consented to, it is important in all jurisdictions to take detailed notes of the interview. In the PRC, secret recordings of investigation interviews may be admissible in court (unless carried out in a private space such as a witness's home), which is something to be mindful of when conducting investigations in the PRC.
#9 – How are confidentiality and whistleblower protections ensured?
Confidentiality and whistleblower protections are essential components of workplace investigations because when employees know their identity and information will be kept confidential, they are more likely to participate without fear of retaliation.
Australia has strict whistleblower protections. If a complaint includes 'whistleblowing' as defined under law, onerous confidentiality obligations limit both disclosure of the whistleblower's identity and information that could lead to whistleblower identification. Investigation processes in Australia must be adapted to ensure that the investigation itself does not inadvertently breach whistleblower confidentiality protections, which can be a criminal offence. Australian law also protects people from victimisation or 'adverse action' in their employment.
In Hong Kong, there is no express protection for whistleblowers. In the anti-discrimination ordinances of Hong Kong, there is, however, protection against victimisation where an employee raises a complaint or claim related to a protected characteristic (which is limited to gender (including marital status, pregnancy and breastfeeding), race, disability and family status in Hong Kong. Similarly, in Singapore, there are no general whistleblower protection laws. However, the Workplace Fairness Act 2025 prohibits employers from retaliation against employees who have raised a discrimination or harassment-related grievance.
The PRC implements safeguards for whistleblowers and witnesses under confidentiality laws to protect their legitimate rights and interests, prevent retaliation and ensure their psychological and professional wellbeing.
#10 – How are data privacy and cross-border transfers managed?
Data privacy and cross-border transfers are critical considerations in workplace investigations.
In Australia, there are restrictions on use, disclosure and handling of data, including both 'personal information' under federal law and certain categories of 'health information' under federal and state laws. There are also restrictions on the transfer of data offshore and/or disclosure to third parties.
In Hong Kong, employers should check whether their existing Personal Information Collection Statement (PICS) is broad enough to cover the use, collection and transfer or employees' personal data for the purpose of the investigation and also whether the witnesses (including the complainant and the accused) have been issued with the PICS. If not, employers could issue a new PICS for the purpose of the investigation, or could expressly seek the witnesses' consent to the use of their personal data in this way (although consent is not required under the Personal Data (Privacy) Ordinance (PDPO) where a PICS has met all the necessary notification requirements, unless existing personal data will be used in a new way). The PDPO does not currently prevent or restrict the transfer of personal data overseas.
In Singapore, the requirements on the use, collection and disclosure of personal data fall under personal data protection legislation. In respect of cross-border transfer of personal data outside Singapore, the general rule is that personal data shall not be transferred outside Singapore except in accordance with the personal data protection legislation or if exempted by the Privacy Commission upon application.
In the PRC, the processing of personal data must meet specific conditions, including in relation to consent, security assessments and data protection agreements. The PRC framework is the strictest data transfer regulation in Asia Pacific.
Are there other measures that should be considered during investigations?
In Australia, suspension during an investigation can be considered, however any changes to complainants' work conditions must be carefully managed to avoid unlawful adverse action. Providing wellbeing support is also essential to ensure that all affected employees receive the necessary assistance to prevent risks to work health and safety.
In Hong Kong and Singapore, suspension during an investigation is also contemplated where there are concerns around the integrity of the investigation being jeopardised by having the accused (and perhaps others) continuing to work during the investigation process, and also if there are concerns around personal safety/retaliation. Employers should be aware of the laws regarding suspension in these jurisdictions though, as these can affect how long the individual can be suspended for and what they are paid during the suspension. In the PRC, suspension is permitted as long as the employee continues to receive his/her normal salary during it.
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.
