Secretary, New South Wales Department of Education v SafeWork NSW (No 2) – NSW Caselaw
KEY TAKEAWAYS:
- Workplace investigations have always carried risks, including the potential to cause harm to the people involved.
- A recent NSW Industrial Relations Commission decision shows that safety regulators are enforcing duties on employers to keep their employees safe from psychological harm during misconduct investigations.
The case
In early 2024, SafeWork NSW issued two improvement notices to the NSW Department of Education.
The first directed the Department to implement and maintain “a safe system of work which minimises the impact of the psychological risks to the health and safety of workers while an investigation into misconduct and performance” is carried out.
The notice specifically included providing employees under investigation with an estimated timeframe for completion of the investigation and regular documented updates.
The second notice directed the Department to ensure “workers who are being investigated are placed in alternate duties which are commensurate with their position, duties and functions”.
The notices required the Department to consult and train employees in these processes and review them to ensure their effectiveness.
The notices were sparked by a SafeWork NSW investigation into a complaint by a Departmental employee who said she suffered serious psychological harm from a 10-month misconduct investigation. She said the harm was caused by extensive delays and inadequate communication about the investigation process, and her placement on alternative lower duties was inconsistent with her substantive management role.
The Department challenged both notices through an internal review (which affirmed the notices) and a stay of the orders (which was granted) until an external review was concluded.
Commission findings
The NSW Industrial Relations Commission upheld the notices, with one limited variation – removing the requirement to provide formal, regular, documented updates during investigations, because the SafeWork NSW Inspector conceded during the hearing that the Department’s existing system was not deficient.
The stay orders were also set aside.
Timeliness of investigations
Timely investigations are essential for maintaining employee trust and wellbeing, but they can be challenging to manage due to factors such as case complexity, witness availability, and the need for thorough evidence gathering.
Evidence presented to the Commission revealed the Department aimed to conclude investigations into “uncomplicated matters” within three months.
However, active investigations data (as of March 2024) presented to the Commission showed varying investigation lengths – many of which were significantly longer than the 10 months experienced by the complainant:
- 245 ongoing for 0–6 months
- 191 for 7–12 months
- 81 for 13–18 months
- 43 for 18–24 months
- 46 for over 24 months
SafeWork NSW pointed to this evidence to demonstrate that investigation delays and the psychosocial hazards they posed were not specific to the complainant.
Key learnings for investigators and employers
- A single complaint can ground a systemic improvement notice. Regulators do not need evidence of harm across multiple workers; it is sufficient that the risk is one a reasonable employer should have foreseen across its workforce.
- Regulators will scrutinise an organisation’s investigation systems and processes, and SafeWork Inspectors can act on the basis of a reasonable belief, genuinely held and objectively supportable, without needing to prove a breach has occurred.
- Investigations must be conducted in a timely and expeditious manner. In this case, a general three-month guideline without meaningful safeguards to prevent excessive delays was insufficient. Employers should have documented systems with prescribed timeframes, active monitoring, and escalation processes for investigations that exceed expected timeframes.
- Alternative duties during an investigation must be commensurate with an employee’s substantive role and functions, so far as is reasonably practicable.
Q Workplace Solutions Advisory Service
Our national team conducts investigation audits and reviews to identify gaps and practices that could expose employers to regulatory or legal scrutiny. Contact us on 1300 944 049 to find out how we can help your organisation.
