The ‘it depends’ answer
It depends on whether the question is asked technically or ethically.
The short answer from a technical perspective.
From a technical, legal perspective, the answer is no (in Australia, at least). As the law stands at the moment, external investigators do not owe a duty of care to investigation participants. Ethically, the answer is absolutely yes.
The longer answer
Firstly, let’s look at who are ‘investigation participants’? They are usually employees that include complainants, reporters, disclosers, impacted persons, whistleblowers, respondents, alleged persons, persons of interest, subject officers, witnesses and the like.
Secondly, let’s examine why is there no duty of care? It’s simply because no obligation exists in statute (or delegated legislation) or at common law.
Here are some other legal factors at play:
Employer’s duty to provide a safe workplace to the employee
- The employer owes a duty of care to the employee during the workplace investigation as a part of the employer’s duty to provide a safe workplace.
- However, the duty to provide a safe system of work does not extend to the investigation process (either by the employer or the external investigator on the employer’s behalf).
- Furthermore, the duty to provide a safe workplace is personal to the employer and said to be non-delegable, which means the employer cannot delegate the duty to the external investigator.
- The ‘employer-employee’ relationship is governed by contract, so too is the ‘employer-external investigator’ relationship.
- However, there is no contractual relationship between the external investigator and the employee (either by the external investigator on behalf of the employer), which means there is no duty of care owed by the external investigator to the employee during the investigation.
High Court position
The current legal position (for now) is that an employer can rely on the 2017 decision in Paige that no duty of care is owed by employers towards employees during workplace investigations.
Notably, in 2018, in Govier, the High Court considered whether the decision in Paige precludes the obligation of the employer from a duty of care to the employee on the basis the acts (i.e. the injuries or harm) were made in the course of the
- workplace investigation. Ms. Govier argued there was an implied obligation under the contract of employment for the employer to owe a duty of care. The High Court pointed out that the contract of employment was not exhibited at trial and as such, the High Court did not have the terms of the contract before them to take into consideration. Consequently, the issue could not be properly considered as to the existence and scope of any duty of care under the contract. As a result, the issue was left unsettled and open to future judicial consideration.
- By extension, this translates into external investigators having no duty of care towards employees in workplace investigations
Laws evolve, so the legal position could change. This generally happens when new laws are issued by government agencies or new decisions are made by judges in court.
Various government agencies could introduce Acts and Delegated Legislation (such as regulations, standards, guidelines, etc.), including but not limited to:
- Regulations setting out rules for investigators (meaning both internal and external moving forward) to follow when conducting workplace investigations, with breaches attracting penalties.
- Regulatory Guides providing guidance on how workplace investigations should be approached.
- Standards for investigators that prescribe the skills, knowledge and behaviours that investigators must attain (e.g. competencies, credentials, years of experience, a code of conduct).
New laws could be introduced by decisions in the High Court, deliberating over novel factual scenarios, including but not limited to (individually or collectively):
- An employer with a contract of employment containing implied terms relating to a duty of care in relation to workplace investigations.
- An employer with a contract of employment containing a term or clear statement that workplace policies DO NOT form part of the contract of employment BUT that employees must comply with workplace policies.
- An employer that requires employees to sign workplace policies (including policies relating to discrimination, harassment, bullying, privacy, etc.) that impose mutual obligations.
- An employer that attached individual workplace policies to a contract of employment.
- A statement on the employer website that states the employer uses a trauma-informed approach in workplace investigations.
Should there by a duty of care enshrined in law? Certainly something to think about.
This post is not intended to constitute, and should not be treated as, legal advice.