HR and legal experts explain how positive duty and procedural fairness collide during live investigations like the Swans case
The Sydney Swans' decision to stand down five Australian Football League (AFL) players for the remainder of the 2026 season – after a report of sexual assault at a Melbourne hotel on 17 August 2026 – has become the sharpest live test yet of how Australian employers should balance positive duty obligations, procedural fairness and a code of conduct while a police investigation is still running.
Victoria Police confirmed it was investigating the alleged incident, and it has not been suggested that any of the players face allegations of committing the assault themselves.
For HR leaders, the case is less about football than about a question every organisation eventually faces: what do you do when misconduct allegations surface, the facts are still emerging, and the criminal process could take months or years to resolve?
Sarah Wood, workplace partner at Clyde & Co, says employers are not obliged to freeze their own processes while criminal proceedings play out.
"It is not uncommon for employers to run their own internal process while a police investigation is underway. The key is ensuring the organisation does not interfere with the criminal investigation while continuing to manage workplace risk and meet its obligations to employees."
Wood points to a critical legal distinction that HR practitioners...
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