One of the most common reasons workplace investigations go off the rails — or end up challenged in mediation, the ERA, or the Fair Work Commission — is a poorly written Terms of Reference (TOR).
Terms of Reference are the instruction manual for the investigation.
They outline what the investigator will and won’t look at.
They set boundaries.
They define scope.
They protect fairness.
When TORs are vague, incomplete, or overly broad, investigations can:
- drag on unnecessarily,
- lose focus,
- become biased,
- breach natural justice,
- exceed authority,
- inflame conflict, or
- result in legally unsafe findings.
The good news?
A solid TOR is simple to write when you know what must go in it — and why it matters.
This blog unpacks everything you need to know to create TORs that keep your investigation safe, fair and on track across New Zealand and Australia.
1. What is a Terms of Reference? (Plain-English Version)
A Terms of Reference is a written document that outlines:
- what the investigation is about,
- what questions will be answered,
- who is involved,
- how the process will work, and
- what the investigator is authorised to do.
It keeps the investigation:
- focused,
- fair,
- timely,
- consistent, and
- legally defensible.
Think of it as the GPS of your investigation — without it, you’re guessing.
2. Why TORs matter in NZ and Australia
Across both jurisdictions, TORs help meet the legal requirements of:
- good faith (NZ)
- procedural fairness / natural justice (AU)
- reasonableness
- neutrality
- clarity for respondents and complainants
- scope control
- consistent methodology
Courts and commissions often ask:
- Was the investigation fair?
- Was it properly scoped?
- Did the investigator exceed their mandate?
A good TOR answers all these questions upfront.
3. What a robust Terms of Reference MUST include
Here’s the HR Unlocked template — practical, clean, defensible.
A. Background
A short summary of:
- what triggered the investigation
- who made the complaint (if not anonymous)
- when it was made
- high-level description of the allegations
Example:
“On 5 March 2025, a complaint was received alleging that Employee A engaged in repeated unreasonable behaviour toward Employee B.”
(Keep it factual, neutral, and brief.)
B. Scope (the heart of the TOR)
This section defines exactly what the investigator needs to determine.
Use questions, not statements.
Example:
- Did Employee A say or do the behaviours alleged?
- If so, do those behaviours amount to bullying under company policy and relevant legislation?
- Were any policies or expectations breached?
- What is the impact and context of the behaviour?
Avoid vague scope language like “look into workplace culture” unless that is genuinely part of the investigation.
Scope creep is your biggest risk — keep it tight.
C. Out of Scope
This section explicitly lists what the investigation will not cover.
Examples:
- historical incidents not directly related to the allegation
- performance issues unrelated to the complaint
- anonymous rumours or unsubstantiated claims
- interpersonal conflict that has already been resolved
- grievances or disputes outside this matter
This protects fairness for everyone involved.
D. Roles and Parties Involved
This includes:
- complainant
- respondent
- witnesses
- investigator
- support people (noted, but not central to TOR)
This ensures everyone understands the structure.
E. Investigator Authority
State clearly what the investigator is authorised to:
- interview witnesses
- collect relevant documents
- review emails or CCTV (where lawful)
- make factual findings
- apply policy definitions
- prepare a findings report
Also state what they are NOT authorised to do:
- make disciplinary decisions
- determine sanctions
- provide legal advice
Authority boundaries = procedural safety.
F. Evidence to Be Considered
This might include:
- interviews
- documents
- policies
- emails/messages
- meeting notes
- rosters
- system logs
- physical evidence
Be specific — but allow investigator discretion for relevance.
G. Standard of Proof
Across NZ and Australia, the balance of probabilities applies.
Your TOR should say:
“The investigator will make findings on the balance of probabilities (whether it is more likely than not that the conduct occurred).”
This prevents misunderstanding and protects neutrality.
H. Process Outline
Include:
- how parties will be notified
- right to a support person
- interview steps
- how evidence will be tested
- how fairness will be ensured
- how findings will be communicated
This builds trust in the process.
I. Confidentiality and Privacy
State:
- what information will be kept confidential
- how information will be used
- who will see the final report (usually limited to decision-makers)
This is essential for psychological safety.
J. Timeline
Example:
- interviews within 10 working days
- draft findings within 15–20 working days
- final report after feedback
Be realistic — not rushed.
K. Reporting Format
Typically:
- executive summary
- findings
- evidence relied upon
- analysis
- conclusion
Make this clear upfront.
4. Common mistakes employers make (ANZ-wide)
- Vague scope (“Investigate bullying culture”)
- Scope creep (adding issues mid-way)
- Letting the investigator decide the scope (your job, not theirs)
- Failing to define out-of-scope matters
- Not clarifying the standard of proof
- Letting TOR become too long or legalistic
- Not sharing TOR with parties early
- TOR written AFTER the investigation began
- TOR that feels biased toward one party
A clean TOR avoids all of these pitfalls.
5. When to update the Terms of Reference
Only update TORs if:
- new information materially changes the scope, AND
- the change is necessary for fairness, AND
- all parties are consulted first.
Never change TORs unilaterally or without transparency.
The human side of TORs
Terms of Reference aren’t just a compliance tool.
They are a trust tool.
A clear TOR helps complainants feel safe.
It helps respondents feel protected.
It reassures witnesses.
It guides investigators.
It gives leaders confidence.
One HR Unlocked client shared:
“Before we used TORs properly, investigations felt chaotic. Now they feel structured and fair — people actually trust the process.”
Clarity reduces fear.
Structure reduces conflict.
The bottom line
A strong Terms of Reference:
- defines scope
- protects fairness
- prevents bias
- prevents delays
- reduces legal risk
- builds trust
- keeps the investigation on track
- provides transparency
- protects the integrity of outcomes
Across NZ and Australia, good investigations begin with good TORs.
If you want ANZ-ready TOR templates, investigation scripts, evidence matrices, and fair process guides, HR Unlocked gives you everything you need — without the consulting fees or the legal jargon.
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