Do Employers Owe a Duty of Care to Employees when Undertaking an Investigation?

The Courts have recently recognised that employers may owe a duty of care to employees during the course of a workplace investigation.

In Hayes v State of Queensland [2016] QCA 191, the Queensland Court of Appeal held that an employer may owe a duty of care to support an employee during the course of an investigation process. Four employees, who had allegations of bullying and harassment made against them, alleged that they were owed a duty of care by the employer when the complaints were made as well as during the course of the investigation. The employees claimed this duty was breached as the employer failed to adequately support them throughout the investigation, resulting in psychiatric injuries.

The Court found that a duty of care existed and a claim could be made for failure to provide adequate support to the employees during the investigation. The Court noted that whether the duty of care will arise will be a question of fact in each case. However, the overall claim failed as the Court found the employees were unable to establish that the breach caused their injuries.

The issue found itself before the courts again in the case of Govier v Unitingcare Community [2017] HCATrans183 (15 September 2017). Unitingcare commenced a workplace investigation following allegations by an employee, Ms Govier, that another employee had attacked her when they attended an off-site premise. The following day, Unitingcare issued a letter requiring Ms Govier to attend an interview. Ms Govier failed to attend the interview due to illness. Unitingcare issued a further letter informing Ms Govier that, due to her refusal to attend an interview, they made findings in her absence. Unitingcare concluded that Ms Govier had engaged in violent behaviour and invited her to show cause as to why her employment should not be terminated.

The appeal is expected to be heard before the High Court in 2018. Ms Govier will allege that Unitingcare knew, or ought to have known, that issuing the letters would cause psychological injury and that these injuries were reasonably foreseeable. Conversely, Unitingcare will argue that investigations are a contractual matter and are therefore not affected by a tortious duty of care.

These cases demonstrate that employers must take care when conducting investigations to provide support not only to complainants, but also to respondents.

Author: Georgia Starky, Q Workplace Solutions