Workplace Investigation Employers duty of care.

Workplace Investigation Employers duty of care – Do employers owe a duty of care to employees during a workplace investigation? This question will be examined this year in an appeal to the High Court. The decision could have significant and widespread implications for employers, employees and HR professionals when conducting a workplace investigation.

The High Court granted an employee special leave to appeal the decision in the case of Govier v The Uniting Church in Australia Property Trust. This decision concerned the liability of a disability services provider when one of its employees Ms Govier who was attacked by a colleague. Ms Govier required hospitalisation and claimed that she feared that she would die during the attack, she subsequently developed chronic post-traumatic stress disorder and depressive disorder.

Immediately after the Incident, Ms Govier telephoned her supervisor and advised him that she had been attacked by a colleague, that she had telephoned the police, and that she was going to hospital.

The employer immediately commenced an investigation on the same day preparing and delivering a letter to the Ms Govier’s home that required her to attend an investigative interview on the following day and directed her not to discuss the incident with any other person. The letter also outlined that Ms Govier was stood down on full pay pending the determination of the investigation. Ms Govier received the letter while she was still in hospital as a result of the Incident.

Ms Govier did not attend the interview, she provided her employer with a medical certificate that advised that she was unfit for work. Two weeks later, the employer wrote another letter to Ms Govier claiming that she had refused to attend the interview and that its preliminary finding was that she had engaged in violent and inappropriate behaviour against her colleague. Ms Govier was given five days to show cause as to why termination of her employment was not warranted. Ms Govier did not return to work and her employment was ultimately terminated.

Ms Govier claimed damages for the aggravation of her psychiatric injury, arguing that the content of the two letters aggravated her chronic, post traumatic and major depressive disorders, and, had she not received the letters, her injuries would not have been so severe.

At first instance in the District Court of Queensland, Ms Govier argued that the decision by her employer to issue the letters in connection with the workplace constituted a breach of a duty of care owed by the employer. Ms Govier was unsuccessful and appealed to the Queensland Court of Appeal . The QCA ultimately agreed with the District Court, finding that no damages were payable because the employer did not have a duty to avoid such harm in the course of investigating the incident. The QCA followed the authority of State of New South Wales v Paige. In that case, the NSW Court of Appeal found that the appellant did not owe a duty of care to conduct its disciplinary procedures so as to avoid psychiatric harm to the respondent.

In the High Court, it will be alleged that the employer knew or ought to have known that sending the first letter immediately after the incident would aggravate Ms Govier’s psychiatric injuries. It will also be argued that Ms Govier’s injuries were reasonably foreseeable in the circumstances. The appeal seeks to clarify the application of the rule in Paige to workplace investigations in which the employer has control over the investigative process, as distinct from the facts in Paige where the issue turned on a disciplinary regime governed by statute.

The High Court is expected to hear the appeal early this year.

Workplace Investigation Employers duty of care – Lessons for employers

  • When conducting a workplace investigation it is important that employers and HR professionals act in professional and time appropriate manner.
  • Whether the High Court finds that employers owe a duty of care to employees during a workplace investigation or not it is wise for employers and HR professionals to take am approach that minimises the dangers of harm.

Workplace Investigation Employers duty of care – How can we help

AWPTI can provide workplace investigation training programs to help HR professionals to master the skills associated with the conduct of a workplace investigation – more details

Should you wish to conduct the investigation internally we provide and investigation review service or Investigation Peer Mentoring – More details

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

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