How to avoid failing in your duty of care using best practice investigations

Flawed investigation or complaints management process leads to mental illness or other harm to a worker's mental wellbeing, the organisation can face serious financial and legal repercussions.

psychological injury

When carrying out workplace investigations, it is essential that both employers and investigators thoroughly understand the legal duty of care owed to respondents and witnesses.

This includes safeguarding both their physical and mental health at all times. If a flawed investigation or complaints management process leads to mental illness or other harm to a worker’s mental wellbeing, the organisation can face serious financial and legal repercussions.

We examine some of the key pitfalls, and offer a few tips for success.

Investigations and worker mental health

The common law obligation of an employer to take all reasonable steps to provide a safe system of work and to avoid psychiatric injury is well established in law. Cases such as Koehler v Cerebos (Aust) Ltd (2005), and Robinson v State of QLD (2017) have demonstrated just how serious a breach of the duty of care can be. In Robinson for example, the worker’s experiences of delay, humiliation, isolation and personal undermining all amounted to a failure by the employer to fulfil the duty of care.

The Supreme Court awarded Ms Robinson damages of $1,468,991.11, including general damages and damages for past economic loss, loss of superannuation and future economic loss/expenses. The court noted that much of the mental harm was avoidable, with the risk of serious psychiatric harm in fact being reasonably foreseeable.

Worker Isolation and the duty of care

Being involved in a workplace investigation can be inherently stressful for respondents and witnesses alike. We know that workplace culture can suddenly shift, with suspicion and rumour coming to the fore across the work site. For remote workers, a workplace investigation has the added disadvantage of built-in isolation. Many do not have ready access to colleagues and resources to help them manage their mental health during the uncertainty of an investigation.

A poor complaint management or investigative process will only add to this sense of isolation. There is every possibility that actual mental injury will flow from a mishandled investigation. And in the post-COVID environment, the duty of care to protect remote worker mental wellness applies more than ever.

Best-practice workplace investigations

It is vital for employers to have a robust employee mental wellbeing plan embedded within the workplace. This should be comprehensive and rolled out in organisation-wide training; not hastily cobbled together when a complaint or investigation arises. Mental health peer support networks and highly-visible mental wellness contact officers are just some of the resources that can bolster worker health.

Of course the duty of employers covers not only the C-suite, but indeed all HR personnel, supervisors, internal investigators and other human resources with a responsibility for worker mental health. Similarly, any external advice from legal firms or other experts should also assist the employer to reach the high bar raised by the common law duty of care. In this way, it must be nuanced and tailored to the particular workplace.

Highly skilled workplace investigators are essential. In some cases, use of an objective external workplace investigator will be the best way to ensure that workplace investigations are carried out with professional adherence to the substantive principles of natural justice.

Mykludo helps business source and engage experienced workplace investigators making it easy to identify the people with the right skills to solve the problem. Connect with us online www.mykludo.com or call for a free consultation on 1300 994 557.

Mental wellness-aware investigative practice

It can be easy to ‘talk the talk’ on the issue of worker mental wellbeing. Yet employers must ensure that all interactions with respondents and witnesses throughout the investigation are fair, cordial and supportive. The legal duty of care to respondents and witnesses during workplace investigations is significant – and lip service will not suffice.

To find out more about your duty of care as an employer, watch our On Demand Webinar presented by Aaron Goonrey from Lander and Rodgers who presents the leading cases and common law obligations on the topic.

Harriet Witchell

Harriet Witchell founder of MyKludo, has worked in the Investigations industry for over 20 years. Holding many titles to her name including, specialist workplace investigator, business owner, speaker, author, academic, researcher, and trainer.

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