Defamation claims resulting from a workplace investigation

Defamation claims resulting from a workplace investigation

A lot of employees ask, ‘can I be defamed during a workplace investigation?’ Most workplace investigations will involve some form of allegation or accusation. Defamation laws exist to protect a person’s reputation, including protection from unfounded accusations.  

What is defamation?

Because defamation laws vary from state to state, this article only provides a broad overview of the law. If you’re considering your rights in relation to defamation, it’s best to seek legal advice. 

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Defamation generally arises where there is communication (which might be written or verbal) which leads to a loss of reputation for an individual and where there is no available defence.

For example, if Person A tells a group of people that Person B has committed a particular crime and there is no evidence to support that accusation, Person A might be liable for defamation.

Because defamation is concerned with a person’s reputation, a communication from one person to another (that isn’t seen or overheard by anyone else) usually won’t be defamation.

Making a successful defamation claim can involve a high bar – depending on the state you’re in, you might have to first prove that the reputational harm was “serious” or not “trivial”. 

Serious harm may not arise for a number of reasons, including that the defamed person already had a bad reputation, the gravity of what was said wasn’t very high, or only a small group of people received the defamatory communication.

In the context of a workplace, particularly where there are only a few employees and where allegations may not be very grave, this might make it difficult to reach the required threshold for making a defamation claim (even if some low-level defamation has occurred).

For more detailed information about defamation, you can visit our “Defamation Law” page.

Workplace investigations and defamation

In the workplace, the situation with regard to defamation is a little more nuanced because of some of the defences that are available in relation to defamation claims, as well as that many of the examples that could arise might not be serious enough to justify making a claim.  

A common scenario in which defamation is contemplated in the workplace is during a workplace investigation.  

For example, if an employer is investigating suspected misconduct, they might put the allegation to a particular employee or group.

It might also be the case that in making a complaint, an employee communicates potentially defamatory material, for example: “My manager is a bully”.  

How something is worded will have a strong bearing on whether it is defamatory. For example, it may not be defamatory if put as an allegation rather than a concluded fact.

Determining who is responsible for the defamation

One of the key considerations in defamation proceedings is the question of who the “publisher” is; that is, the person who ultimately issues the communication.

In some circumstances, employers can be held liable for the actions of their employees or agents, like external workplace investigators. This means that the employer may be responsible for defamatory communications issued by people acting on its behalf.

If you believe you have been defamed but you are unsure of precisely who is responsible (that is, who you would issue defamation proceedings against), you should seek legal advice.

GET ADVICE FROM AN EMPLOYMENT LAWYER:  1800 659 114

What are the defences to a defamation claim?

There are some defences to a claim of defamation that are particularly relevant to workplace investigations.

  1. The truth (or justification)

If something is substantially true, it’s unlikely to be considered defamatory. Defamation is primarily concerned with false assertions, not true ones.

  1. Honest opinion

If something is expressed as an honest opinion instead of being asserted as the truth, and that opinion relates to the public interest and is based on proper material, then it also may not be defamatory.

  1. Qualified privilege

Qualified privilege is a defence to defamation that arises in certain unique contexts. The defence, which is particularly relevant in the context of workplace investigations, arises if it can be shown that:

  • the person who received the communication had an interest in a particular subject. For example, an employee and their workplace delegate might have an interest in receiving communication about an allegation made against the employee; or, an employer might have an interest in receiving a complaint made by a staff member against their manager;
  • the communication occurred in the context of giving that information;
  • the publication (or communication) was reasonable in the circumstances.

If qualified privilege can be shown, it’s not necessary for the defendant to prove the truth of what was communicated.

The defence of qualified privilege may not be available if the person making the defamatory communication is motivated by malice – for example, a completely false statement that’s knowingly made purely to harm someone.

Remedies for employees defamed during a workplace investigation

The financial remedies for a successful claim of defamation are based on the damage done to a person’s reputation and can include compensation. Naturally, this will depend on the extent of the harm caused and could turn on things like what the actual loss was and how serious the defamation was.

For example, the financial damage caused by defamation that leads to a person losing work or future opportunities could have a calculable monetary value. Additional compensation, subject to any applicable caps, may also be payable for the general loss to the person’s reputation.

Other remedies are also available in defamation cases, such as orders that defamatory material no longer be published. 

Get help from an employment lawyer

Careful consideration needs to be given to whether it’s worth pursuing an action in defamation, particularly if the defamatory material wasn’t published widely and there has been no real economic loss. Running defamation cases can be costly, the amount of damages or compensation available may not be high in some cases and, if you lose, costs may be awarded against you.

Often, a more viable way to push back against the reputational damage is to defend any allegations made against you as a part of the workplace investigation or similar.

If you believe you have been defamed during a workplace investigation and you want to understand your rights, please get in touch with one of our award-winning employment lawyers.

Contacting Hall Payne Lawyers

You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation.

Phone: 1800 659 114
Email: general@hallpayne.com.au


  This article relates to Australian law; either at a State or Federal level.

The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. Appropriate professional advice should be sought based upon your particular circumstances. For further information, please do not hesitate to contact Hall Payne Lawyers.


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