Traditionally, Courts have been reluctant to impose a positive duty on employers to ensure their conduct during an investigation does not pose a risk to employees’ health and safety. However, this may change depending on a High Court decision early next year.
Case Study: Govier v Unitingcare Community
In this case, Ms Govier was attacked and beaten by her colleague. The day following the attack, the employer issued a letter requesting Ms Govier attend an “investigation interview” later that week. Due to her ill health, the employee failed to attend the investigation interview, as well as an interview rescheduled for a later date.
The employer concluded that Ms Govier refused to attend the interviews and made findings based solely on the colleague’s interview that Ms Govier’s conduct was violent. The employer proceeded to terminate Ms Govier’s employment.
Ms Govier did not return to work and she suffered from chronic post-traumatic stress disorder and depression. She claimed that Unitingcare breached its duty of care to her as they should have known that their conduct was likely to exacerbate her psychiatric injury.
The High Court is due to consider whether an employer has a duty of care owed to employees involved in a workplace investigation in early 2018.
The case to date is an important warning for employers to ensure they are following a fair investigation process, taking into account a multitude of factors.
Lessons for Employers
Most employers are aware that a workplace investigation must follow a fair process, as any failures may lead to claims of adverse action or unfair dismissal. In addition, employers may soon have a duty of care to employees imposed during the course of the investigation.
To take a proactive approach in managing legal risks surrounding duty of care during an investigation, employers should consider:
- The impact of the content and timing of the letters sent to employees to participate in an investigation, particularly if the employee is physically or mentally unwell as a result of the incident/s.
- If there is a support person for the employee through whom they can enquire about the progress of the investigation and with whom they can discuss any concerns.
- If there is potential for the investigation to exacerbate any physical or psychological injuries and if so, what you as an employer can do to minimise these.
The key learning from this case is that employers should take positive steps to mitigate the impact of the investigation on the employees’ mental health.