Workplace investigations: does an employer have a duty to take reasonable care?

Articles Written by Ruveni Kelleher (Partner), Lucy Adams (Associate), Rebecca Proudman (Senior Associate)

Workplace investigations are becoming increasingly common in the employment landscape. As a result, Australian courts have been required to scrutinise the extent to which an employer owes a duty to their employees when conducting workplace investigations.

Since the decision of State of New South Wales v Paige [2002] NSWCA 235 (Paige), employers have taken comfort in the finding that an employer does not owe a duty to its employees to take care during the course of workplace investigations as part of the duty to provide a safe place of work. Paige also determined that the duty to provide a safe system of work does not extend to an investigation process.

The recent decision of Govier v The Uniting Church in Australia Property Trust [2017] QCA 12 reignited speculation as to whether a novel category of duty should be imposed on employers. However, the High Court has recently rejected the injured employee’s application for special leave to appeal the Queensland Court of Appeal decision, refusing to consider the question of whether employers should be subject to a duty to take reasonable care when conducting workplace investigations.  

Govier v The Uniting Church in Australia Property Trust

Ms Govier, a disability worker, was brutally attacked by her co-worker during the course of her employment with The Uniting Church. After the attack and whilst Ms Govier was in hospital, The Uniting Church commenced a workplace investigation into the attack. The employer sent Ms Govier two letters. The first, instructed her to attend an investigation interview and directed her not to discuss the incident with any other employee. The second letter, sent several weeks later, advised Ms Govier that as she had refused to attend the interview (nor a subsequent rescheduled interview), The Uniting Church had made preliminary findings in the investigation.

Ms Govier argued, amongst other things, that these two letters exacerbated her psychiatric injuries and that the employer should be liable for the further harm caused. The employee also argued that Paige should be distinguished and a novel duty should be imposed on her employer to take care during a workplace investigation.


At trial, the Queensland District Court determined that the two letters did in fact cause the employee to suffer further psychiatric injuries. However, the Court was unwilling to accept that the employer was liable for these injuries as there was no duty to take reasonable care of the employee’s health in the timing and content of the letters. The judge rejected the submission that an employer’s duty to provide a safe place of work extended beyond the employee’s usual duties of work and into the course of the investigation. The judge found that the employer did not have a duty to provide a safe investigation and decision making process.

On appeal, the Queensland Court of Appeal upheld the trial judge’s findings that despite causing the employee’s further injuries, the employer was not liable given no duty to avoid harm in the course of a workplace investigation existed. The Court was reluctant to distinguish the present case from Paige, stating that although the injury suffered was a foreseeable consequence of a lack of reasonable care, this was insufficient to justify the creation of a new category of duty of care.

The High Court’s Decision

Interestingly, the High Court refused to address the challenge to Paige and instead revoked the application for special leave on the basis that the employee’s contract of employment was not included in evidence. This  was critical to the discussion regarding the employer’s duty of care, as the question of whether the duty existed depended on whether it could be implied into the employment contract and this required consideration of the express terms of the contract.

As a result, it remains an open question whether this new category of duty should be imposed on employers. The High Court’s decision appears to suggest that it would be willing to consider this novel duty should a ‘suitable vehicle’ arise.


For now, employers can continue to rely on the decision in Paige that no duty of care is owed to their employees to conduct workplace investigations in a safe manner. However, employers should be careful to avoid conducting investigations in a manner that can give rise to a bullying or workers compensation claim or cause psychological harm to participants. The High Court may still be willing to address Paige and consider the imposition of this novel duty on employers in a suitable case.

Important Disclaimer: The material contained in this article is comment of a general nature only and is not and nor is it intended to be advice on any specific professional matter. In that the effectiveness or accuracy of any professional advice depends upon the particular circumstances of each case, neither the firm nor any individual author accepts any responsibility whatsoever for any acts or omissions resulting from reliance upon the content of any articles. Before acting on the basis of any material contained in this publication, we recommend that you consult your professional adviser. Liability limited by a scheme approved under Professional Standards Legislation (Australia-wide except in Tasmania).

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