If a workplace investigation is a journey, the Terms of Reference (TOR) is the map.
It defines where you’re going, what you’re examining, what’s out of scope, and how the process will work.
And yet, across New Zealand and Australia, TORs are one of the most commonly skipped, rushed or poorly drafted parts of the investigation process.
A vague or sloppy TOR leads to:
- scope creep,
- investigator bias,
- inconsistent findings,
- retraumatised parties,
- unfair process claims,
- questions from the ERA or Fair Work Commission,
- loss of trust,
- flawed outcomes,
- legal exposure.
A strong TOR protects the organisation AND the participants.
It gives everyone clarity, boundaries, safety and structure.
Here’s your HR Unlocked guide to drafting TORs that are fair, legally defensible, and fit for purpose.
1. What is a Terms of Reference? (Plain English)
The TOR is:
A written document that defines the purpose, scope, method, roles, standards, and constraints of the investigation.
It explains:
- what is being investigated,
- what is NOT being investigated,
- how the process will work,
- who is involved,
- how evidence will be gathered,
- what definitions apply,
- what the investigator can and can’t do,
- what the deliverables will be.
A TOR protects neutrality, safety and fairness.
2. The biggest mistake employers make: letting the investigator decide the scope on the fly
Without a TOR, investigators are forced to:
- guess what’s relevant,
- navigate unclear boundaries,
- interpret allegations inconsistently,
- expand or shrink scope based on pressure,
- risk appearing biased.
A TOR is non-negotiable in any professional investigation.
3. What MUST be included in a defensible TOR (NZ + AU)
A great TOR includes 10 essential components.
1. Background summary
A brief neutral overview:
- who raised concerns,
- when,
- broad nature of issues,
- why an investigation is being conducted.
This sets context without making findings.
2. Purpose of the investigation
Explain the intent, e.g.:
“To determine whether the allegations (as defined below) are substantiated on the balance of probabilities.”
Simple. Clear. Legally correct.
3. Allegations (clearly worded)
This is the most important part.
Allegations must be:
- specific,
- behaviour-based,
- factual (not emotional),
- neutral in tone.
Example of a poor allegation:
❌ “James bullied Sarah.”
Example of a safe allegation:
✔ “It is alleged that on multiple occasions between March and May 2025, James made comments to Sarah in team meetings that she perceived as belittling or humiliating. It is alleged that these comments occurred in the presence of other team members.”
Clarity protects both parties.
4. Scope of the investigation
Define what IS in scope.
Examples:
- specific dates
- specific incidents
- specific behaviours
- specific meetings
- relevant witnesses
- relevant documents
Then define what is NOT in scope.
Examples:
- historical unrelated complaints
- previous performance issues
- events outside the timeframe
- gossip or hearsay unless corroborated
- anonymous statements without detail
Scope prevents chaos.
5. Evidence collection method
State:
- interviews,
- documents,
- policies,
- emails/messages,
- meeting minutes,
- CCTV (if applicable),
- digital forensics (if applicable).
Transparency prevents challenges later.
6. Standards applied
This section MUST include:
• Standard of proof
Balance of probabilities (NZ + AU)
— not criminal standard.
• Definitions
Include relevant:
- bullying definitions
- harassment definitions
- misconduct definitions
- policy standards
- statutory definitions (HSWA/WHS, HRA, FWA etc.)
• Procedural fairness
Confirm both parties will receive:
- clear allegations,
- chance to respond,
- ability to have a support person,
- opportunity to comment on adverse evidence.
7. Investigator role and limitations
Clarify:
- independent role,
- no decision-making authority regarding disciplinary outcomes,
- no advocacy for either party,
- ability to ask for additional evidence if relevant,
- any limitations (e.g., access to systems, timeframes).
This prevents inappropriate requests or scope creep.
8. Deliverables
Examples:
- findings-only report,
- findings + recommendations (note: only if requested),
- summary of evidence,
- appendix of documents.
Be crystal clear.
9. Confidentiality and privacy
State:
- information will be shared only on a need-to-know basis,
- documents may be disclosed in ERA/FWC if required,
- no anonymous findings unless corroborated,
- participants may not discuss the investigation externally.
This protects integrity.
10. Timeframe
Set a realistic deadline:
- typically 2–6 weeks, depending on complexity
- include ability to extend with notice
Timeframes keep momentum and reduce stress.
4. How to draft allegations properly (the hardest part)
A good allegation includes:
- who,
- what,
- when,
- where,
- how often,
- impact (if relevant).
Example structure:
“It is alleged that [Name] did [specific behaviour] on [date(s)] at [location], which [may breach X policy or create Y risk].”
Vague allegations = unfair process.
Overly broad allegations = biased process.
Overly narrow allegations = incomplete process.
Balance is key.
5. When to revise or expand the TOR
You should revise the TOR when:
- new allegations emerge,
- new witnesses or evidence change scope,
- additional incidents are reported,
- HR identifies gaps,
- fairness requires it.
Always:
- consult parties,
- explain changes,
- document rationale,
- re-issue updated TOR.
Transparency = fairness.
6. When the TOR should limit the investigation
Limit scope when:
- allegations are historic and unrelated,
- multiple complaints are merged incorrectly,
- parties attempt to expand scope for tactical reasons,
- allegations drift into “character” rather than behaviour,
- the respondent tries to counter-accuse without process.
TOR = boundary protection.
7. The human side: TORs protect dignity
Employees often feel:
- scared of misrepresentation,
- worried the allegations are vague,
- fearful of unfair process,
- anxious about reputational risk.
A well-written TOR reassures them with clarity and fairness.
One HR Unlocked client said:
“Once our TORs became clearer, our investigations stopped blowing up. Staff said they felt safer because they finally understood the boundaries.”
That’s the power of structure.
The bottom line
Terms of Reference are not a formality — they are the foundation of a fair, lawful, safe and credible investigation.
Across NZ and Australia, the safest and most effective approach is to:
- write clear allegations,
- define scope tightly,
- explain process transparently,
- apply correct standards,
- protect fairness for all parties,
- limit investigator overreach,
- document everything,
- treat people with dignity.
Handled well, a TOR transforms the entire investigation — reducing conflict, building trust, and strengthening legal defensibility.
If you want ANZ-ready TOR templates, allegation drafting guides, investigation checklists and full fair-process frameworks, HR Unlocked gives you everything you need — without the consulting fees or the legal jargon.
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