High Court to review employer duty of care in workplace investigations

The High Court of Australia has granted special leave to appeal in a case concerning the duty of care which an employer owes to an employee when conducting workplace investigations.  The grant of special leave does not necessarily mean that the law will change, but it does provide a useful opportunity to consider some of the legal risks of workplace investigations.

The case concerned an employee who was attacked by a co-worker and hospitalised as a  result of the injuries sustained in the attack.  While the employee was in hospital, her employer sent a letter to the employee, requiring the employee to attend at a meeting on the following day.   The employee was, unsurprisingly, too ill to attend the meeting.

Despite the employee’s medical evidence, the employer decided that the employee was “refusing” to attend a meeting, and proceeded to make findings that the employee, rather than the co-worker, had initiated the attack.  The employer then sent a second letter to the employee making serious allegations about the employee’s professional conduct and asking the employee to advise why her employment should not be terminated.

The Court found that that employer’s actions in relation to the timing and the content of the letters had been negligent, that the negligence had caused the employee to suffer psychiatric harm, and that it was foreseeable that the timing and content of the letters would cause such harm.  However, the employer succeeded because of authorities which have held that an employer’s undisputed duty to provide a safe system of work only extends to the performance of tasks for which an employee is engaged, and does not extend to “incidents” of the contract of employment, such as a safe system of investigation and decision making.  It is this question (does the duty to provide a safe system of work include a duty to provide a safe system of investigation and decision making?) which the High Court looks likely to consider when it hears the case.

However, regardless of whether the High Court decides to enlarge the employer’s duty to provide a safe system of work, the risks of getting workplace investigations wrong are numerous, and include legal claims for breach of contract, under anti-discrimination law, and for bullying (as well as the non-legal costs of workplace disruption and disharmony).

Where a workplace investigation is conducted in a manner which affected people perceive to be unfair, it is likely to be productive of litigation in which, even where the employer succeeds, the employer will incur costs which could have been avoided by a fair process. Even in cases where termination of employment occurs, dismissed employees are much less likely to sue if they have been given a fair hearing.

It is true that lawyers will not always be the best people to conduct workplace investigations, but even when we are not, we will be able to assist in the investigation design (which will be a lot cheaper than asking us to clean up after an investigation which has gone awry).  And even an early clean-up, of course, will be a lot cheaper than having to litigate the matter all the way to the High Court of Australia.

For more on our employment law (including workplace investigation) capabilities, contact Angus Macinnis

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September 19
Employment Law