Part 1 | Psychosocial hazards and workplace investigations

KEY TAKEAWAYS:

• many business leaders are either unaware of the psychosocial risks associated with workplace investigations or unsure how to manage them, according to a global survey
• two key psychosocial risks present in a workplace investigation are: the content of the complaint; and the investigation process
• key workplace investigation controls identified in the Model Code of Practice: Managing psychosocial hazards at work, state-based Codes of Practice and the positive duty on employers to eliminate sexual harassment include: appointing a skilled, independent and impartial investigator; adopting a process that is fair, transparent and timely; and adopting a trauma-informed approach
• the High Court of Australia has been asked to determine if an employer’s duty of care to its employees extends to the “provision of a safe system of investigation and decision-making as to discipline and termination?” in the matter of Elisha v Vision Australia Ltd.

It’s been almost a year since most Australian states and territories adopted model laws to eliminate or minimise psychosocial hazards in the workplace.

This broad-based preventative approach to safeguard employee health and wellbeing, and the positive duty on employers to prevent sexual harassment — a recognised psychosocial risk — has led to increased investigations into workplace behaviours.

Positive in theory, but challenging in practice

The practical implementation of psychosocially safe workplace practices, including in the conduct of workplace investigations, represents an ongoing challenge for employers, as evidenced by a survey of senior Australian and UK business and government agency leaders.

According to the Ashurst 2023 survey: “50 per cent of respondents indicated their organisation has taken no steps or ‘don’t know’ what steps have been taken to eliminate or mitigate psychosocial risks associated with misconduct and safety investigations.”

In the context of workplace investigations, psychosocial risk management does not only relate to participants in workplace investigations, but also the investigators leading them — two areas that could benefit from more considered and thoughtful examination by employers.

In this first article in a three-part series, we look at: the two key psychosocial risks associated with a workplace investigation; the regulatory environment in which employers and workplace investigators are operating, including expectations outlined in Codes of Practice; and key case law.

The second article will focus on how to safeguard the wellbeing of participants in workplace investigations, by identifying practical steps employers and investigators could take to minimise the risk of the investigation process causing psychosocial harm to participants.

The third article will delve into the often overlooked area of investigator wellbeing. It will offer proactive measures employers could implement to safeguard the psychological health of their investigation teams, and the steps investigators can take themselves to look after their own mental health.

Two key psychosocial risks of a workplace investigation

There are two key psychosocial risks that are commonly present in workplace investigations:

1. The content of a complaint, which can be confronting, unpleasant or upsetting for the investigator and participants, particularly in re-visiting and speaking about particular workplace incidents. Regulatory guidance materials have identified exposure to traumatic events such as bullying, violence, aggression and harassment, including sexual harassment, as common psychosocial hazards in the workplace.

2. The investigation process itself can create or increase the risk of certain psychosocial hazards. For example, if there is inadequate interviewee support, if the investigation is conducted in a procedurally unfair manner, or if interviews about traumatic matters are conducted in a way that lacks a trauma-informed and person-centred approach.

Regulations and Codes of Practice to manage psychosocial risks

Workplace design practices and controls that can eliminate or minimise the risk of psychosocial harm to employees are identified in:

• Australia’s 2022  Model Code of Practice: Managing psychosocial hazards at work
• state-based codes of practice
• the positive duty on employers to eliminate sexual harassment.

The key controls identified in the Model Code of Practice and stated based codes related to risk managing workplace investigations include:

• appointing a skilled, independent and impartial investigator
• adopting a process that is fair, transparent and timely
• adopting a trauma-informed approach.

The model Model Code of Practice provides some guidance on the conduct of investigations into psychosocial hazards such as determining whether an investigation is needed, and if so that it is “proportional to the risks” and relevant to the circumstances.

If an investigation is warranted, the Model Code of Practice recommends appointing a skilled and impartial investigator, and that “the investigation should be fair, transparent and timely to ensure due process for both those who raised the issue and any workers who have had allegations made about them”.

The Model Code of Practice does not specifically identify the potential psychosocial risks associated with a workplace investigation itself. The following state based codes provide some guidance in this area.

The NSW Code of Practice notes that the employer “must control the risks whilst investigations are being conducted, so the potential for further harm is eliminated or minimised”.

Queensland’s Code of Practice identifies work design examples to minimise the risk of psychosocial hazards, including “using a trauma-informed approach when responding to complaints of work-related violence and aggression, work-related bullying and sexual harassment and ensuring investigations are fair, independent and handled in a sensitive way”.

The Queensland Code of Practice further states that: “the concept of a trauma-informed approach means that workplace systems recognise and acknowledge that workplace responses or investigations of reports about psychosocial hazards can escalate or de-escalate distress in those with a history of trauma.”

Common law

Until the adoption of the new model laws and Codes of Practice, case law provided guidance to employers, particularly in relation to workplace investigations.

According to the judgment in the matter of the State of New South Wales v Paige¹, there is no separate legal duty of care placed on the employer as to how a workplace investigation is to be conducted.

In light of Australia’s new workplace psychosocial safety laws, we expect to see more cases where employers’ obligations with respect to managing psychosocial safety and workplace investigations will be discussed.

A case that could have significant implications for employers, depending on the outcome, is the matter of Elisha v Vision Australia Ltd². In this case, the employee contended his employer breached his contract of employment or had been negligent, claiming he suffered a psychological injury as a result of the processes leading to and resulting in the termination of his employment.

The complex legal matter is now before the High Court of Australia. One of the key issues the employee’s legal representatives have asked the High Court to determine is: “Can an employer’s duty of care to its employees extend to provision of a safe system of investigation and decision-making as to discipline and termination?”³.

If the answer is yes, the implications for investigators and employers will be significant.

In our second article in this three-part series, we will look at how to safeguard the wellbeing of participants in workplace investigations, by identifying practical steps employers and investigators could take to minimise the risk of the investigation process causing psychosocial harm to participants.

¹ State of New South Wales v Paige [2002] NSWCA 235.
² Elisha v Vision Australia Ltd [2024] HCA M22.
³ Elisha v Vision Australia Ltd [2024] HCA M22, Appellant submission.

More information

Seasoned workplace investigators from Q Workplace Solutions – one of Australia’s largest independent specialist workplace investigations firms – have developed a specialist training workshop to help internal workplace investigators and legal, HR and compliance professionals expertly manage and conduct a sexual harassment investigation using trauma-informed practices to minimise the risk of harm to participants. This final 2024 Q Workplace Training workshop – Sexual Harassment Investigations – is being held online over two half days on 27 and 28 November. Book here.

Q Workplace Solutions’ team of experienced and legally qualified investigators are trusted by public and private organisations, including ASX-listed companies and government departments, to investigate complex and often highly sensitive allegations of employee wrongdoing. They also undertake culture reviews of organisations, divisions or teams, and provide coaching and external advisory support to internal investigation teams.