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UpdatesApr 20, 2018

What duty of care exists in a workplace investigation?

The boundaries of an employer’s duty of care is always being tested, but the High Court this week decided it was not able to test it one more time.

By Michael Selinger

The boundaries of an employer’s duty of care is always being tested, but the High Court this week decided it was not able to test it one more time (Govier v Unitingcare Community [2017]). The High Court was all set to consider the existence and scope (if any) of the duty of care owed by employers to employees when carrying out a workplace investigation. But at the very last minute it pulled the pin and revoked its decision to grant special leave to the injured workers appeal.

As a result, the case law on this point remains in place such that an employer’s duty to provide a ‘safe system of work’ does not extend to include an obligation to supply a safe system of investigation and disciplinary decision-making in the workplace.

The facts

As a bit of a refresher, in the matter of Govier, a workplace investigation was instigated following an incident involving two Uniting Care employees (namely Ms Govier and ‘MD’). Both employees were engaged as Disability Workers and were required to attend off-site premises to provide high level care to disabled persons. There was a documented history of ill-feeling between Ms Govier and MD.

On 3 December 2009, Ms Govier alleged (and the Courts ultimately accepted) that she was viciously attacked by MD, and that the attack resulted in her ‘escaping the off-site premises in her car’ and taking herself to hospital. She was subsequently certified as being unfit for work until at least 21 December 2009.

In the interim, and while Ms Govier remained in hospital, Uniting Care commenced a workplace investigation into the incident.

As would be the case in any workplace investigation, Uniting Care commenced its processes by issuing a letter to Ms Govier. That letter, which was issued the day after the alleged attack, required that Ms Govier attend an “investigation interview” later that week, that she not speak with anyone in the organisation about the incident and that she was to be stood down on full pay pending the outcome of the investigation. As she was too ill, Ms Govier did not attend the investigation interview and a medical certificate was submitted by Ms Govier to that effect.

Two weeks later, Uniting Care issued a further letter to Ms Govier as part of its investigation. That letter advised Ms Govier that – as she had “refused” to attend the investigation interviews – Uniting Care had made a series of preliminary findings based on an interview it had held with MD. Those findings included that Ms Govier had herself engaged in “violent, inappropriate behaviour” against MD and Ms Govier was invited to show cause within five days as to why her employment should not be terminated.

Ms Govier never returned to work, and her employment was ultimately terminated by Uniting Care. She suffered a chronic post-traumatic stress disorder (PTSD) and major depressive order.

The importance of the contract

The High Court decided it could not hear this case as a suitable vehicle to consider the law because it realised that the employee’s contract of employment was not in evidence. This was important because Uniting Care had submitted that there could not be a breach of any duty of care owed by Uniting Care because the right to undertake a workplace investigation into the conduct of an employee was a matter of contract.

Where to from here for employers?

As a result of the High Court not proceeding with the matter, employers are left with some outstanding questions including:

At present, employers do not hold a duty of care that can result in a claim for negligence if they issue what the courts described as insensitive and ill-timed investigation letters.

However, employers should remain vigilant and consider carefully when and how they will communicate with workers during an investigation. The impact of ill-timed correspondence could well lead to a claim against the employer and the outcome may not be certain.

Having in place clear processes for conducting fair investigations, including the timing of correspondence and requirements for responses, will assist your business avoid unnecessary costs if a claim is commenced.

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