Can an employer be negligent when conducting a workplace investigation?

Workplace InvestigationBy Tahnee Watson, Taylor Smart Lawyers and Notaries, Perth

Employers will already be aware that when investigating a workplace complaint, they have to take proper care to ensure that they are procedurally fair, and the workplace investigation is kept as confidential as possible.

But can they also be liable if they are negligent in the way they conduct the investigation, causing harm to an employee?

The High Court is now going to consider that question, after a recent decision to grant special leave from the decision of the Queensland Court of Appeal in Govier v The Uniting Church in Australia Property Trust (Q) [2017] QCA 12.

An employer has a general right to hold a hearing or an investigative process into the behaviour of an employee, A duty lies upon an employee, in general terms, to give information to an employer such as is within the scope of employment and which relates to the mutual interest of employer and employee in an investigation.

However, the High Court will now consider the existence and scope of the duty of care owed by employers to employees when carrying out a workplace investigation, and whether an employer’s duty to provide a safe system of work extends to the investigative process.

In Govier, Ms Govier, who was employed by UnitingCare Community as a disability worker, was attacked violently by a co-worker at her workplace.  She suffered physical and psychiatric injuries as a result.

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

UnitingCare Community immediately commenced an investigation into Ms Govier’s conduct and hand delivered a letter to Ms Govier’s home requiring her to attend an interview the next day. Ms Govier was too ill to attend the first meeting, and UnitingCare Community required her to attend a further meeting three days later.

Ms Govier was again too ill to attend the meeting, and provided a medical certificate to UnitingCare Community evidencing this fact. She then received a third letter from UnitingCare Community in which they claimed that she had “refused” to attend, and that adverse findings had been made against her.

Ms Govier never returned to work, and her employment was eventually terminated.  She went on to sue UnitingCare Community for a breach of their duty to provide a safe system of work, which had caused her to suffer post-traumatic stress and a major depressive disorder.

At first instance in the District Court of Queensland, Ms Govier argued that the decision by UnitingCare Community to issue the letters in connection with the workplace investigation – when she was in a highly fragile mental state, constituted a breach of a duty of care at law owed by UnitingCare Community.

She was unsuccessful, and the Court of Appeal agreed with the District Court.  However, the High Court has granted special leave, and will hear the matter early in 2018.

We do not know how the High Court will ultimately decide, however in the interim, it is important that every employer conducting a workplace investigation takes care to consider the wider implications of how the investigation is conducted, particularly whether the manner of investigation could potentially breach the non-delegable duty to provide a safe system of work to an employee.

It is vitally important to get detailed advice about the safest way to conduct the investigation, as well as to carefully consider the content of letters given to employees and the requirement to attend interviews, particularly where the physical and/or mental state of the employee may be affected.

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