In recent years, there has developed an increasing awareness of the potential negative impacts of a workplace investigation on participants. Historically, the focus has been on the impact of the investigation on the complainant. This is because the written complaint will often refer to the impact of the respondent’s alleged behaviour, and put the investigator and employer on notice from the beginning that the complainant claims they are suffering from stress, anxiety or depression as a result of the alleged incidents.
Now, it is recognised that respondents can be just as negatively affected as complainants, in particular where the allegations are serious and there is the potential for disciplinary action if the allegations are proven.
Given the increasing awareness of the potential impact of investigations on the mental and physical wellbeing of employees, in this blog post we discuss some cases which have considered the duty of care that an organisation (or an investigator) owes to all participants during an investigation.
The way the investigation is undertaken
On the one hand, the current legal position is that an employer does not owe a duty of care to its employees in regard to the way the workplace investigation is conducted (whether by the employer or an investigator on its behalf), and therefore does not breach any duty of care, even where the way the investigation was undertaken is identified as the cause of stress and psychological injury to an employee. That is, there is no obligation to supply a ‘safe system of investigation’: Govier v UnitingCare Community  QCA 12.
In Govier, the investigation in question followed an incident in which Ms Govier alleged she had been viciously attacked by another employee, after which she took herself to hospital for treatment. After initiating an investigation into the incident, her employer sent two letters to Ms Govier while she was in hospital. The first letter requested her to attend an investigation meeting the following week. Ms Govier was too ill to attend, and provided a medical certificate. The second letter, sent after the proposed meeting date, advised Ms Govier that, as a result of her ‘refusal to attend the meeting’, it had made preliminary findings in her absence (that went against her). Ms Govier never returned to work, and her employment was ultimately terminated by Uniting Care. Ms Govier claimed that, when it sent both the letters, her employer was aware of Ms Govier’s fragile psychiatric state. She therefore claimed that her employer had failed in its duty of care to her as the letters contributed to a psychiatric injury (a chronic post-traumatic stress disorder and major depressive order), and this was foreseeable.
The Queensland Court of Appeal found, however, that although the psychiatric injury (or exacerbation) suffered by Ms Govier was a foreseeable consequence of the letters, this was not of itself sufficient to justify the creation of a new category of duty of care in regard to the way the workplace investigation was conducted. That is, there was no obligation to supply a ‘safe system of investigation’
Ms Govier appealed this decision to the High Court of Australia, which is due to be decided soon. The key question before the Court is whether Uniting Care’s decision to issue the letters in its workplace investigation (i.e. the investigation process that it followed) constituted a breach of any duty of care it owed to Ms Govier, and if so, the extent of that duty. Watch this space!
A safe system of work
Apart from the question as to whether an employer’s duty of care extends to the way an investigation is undertaken, relevant cases have commented that during an investigation:
- an employer has a general duty of care to provide a safe system of work which continues during the investigation (State of NSW v Paige  QDC 56), and
- support should be provided to an employee during the course of the investigation (Hayes & Ors v State of Queensland  QCA 191).
The provision of support is particularly important if the investigation is large and protracted, and the stakes are high.
In Worklogic’s experience, it is always prudent to mitigate that risk in all cases by offering real support, even where it is not immediately apparent it is required. Ideally each respondent and complainant should have someone within the organisation who is able to explain the process and answer questions.
What does ‘real’ support look like?
Although it is common practice for employers to offer free counselling to employees taking part in investigations (such as an Employee Assistance Program), such counselling may not of itself provide sufficient support to satisfy the duty where it exists. Best practice is also to nominate a neutral person in human resources or another part of the business. This person can:
- make personal contact to check on the welfare of the person,
- ensure they have access to appropriate mental health care, and
- respond to enquiries about the progress of the investigation and discuss any concerns.
Clearly there is some complexity – and unknown questions which the courts are still considering – around the limits of the duty of care owed by employers to employees during an investigation. We recommend that employers get legal advice to understand their duties, if dealing with risky and sensitive workplace relations cases.
Consistent with good practice, employers should always take care of the health and wellbeing of each of its employees during an investigation (including witnesses), in particular where it is aware of pre-existing mental of physical fragility of an employee. Take special care with the timing and mode of communications.
About Tom Henry
He understands the value of clear analytical thinking, concise and powerful communication skills, excellent client service and effective case management.
Tom has led numerous challenging, highly technical workplace investigations in a variety of sectors and has seen first-hand both the power of social media and the damage it can do if used inappropriately.
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