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Duty of Care During Disciplinary Investigations

May 20, 2019

Govier v The Uniting Church in Australia Property Trust (Q) [2018] HCA Trans 65 (13 April 2018)

 

In 2018, the High Court considered the extent to which an employer assumes responsibility for the inquiry or the conduct of any investigation in relation to its employees under the Workers Compensation & Rehabilitation Act 2003 (Qld) (WCRA).

 

The High Court revoked the grant of special leave to appeal from the judgment of the Queensland Court of Appeal, thereby dismissing Govier’s appeal and affirming the decision of the Queensland Court of Appeal. However, the High Court’s revocation did not determine the issue and leaves open the potential for the issue to be reviewed.

 

The Facts

 

Govier suffered both physical and psychiatric injuries following a physical assault by a fellow employee, as a result of which she was hospitalised. One day following the assault Unitingcare, the employer, issued Govier correspondence instructing her to attend an investigation interview the following day. Govier was also directed not to discuss the incident with any other employee, and was stood down on full pay pending the outcome of the investigation. Govier claimed she was too injured to attend the proposed interview as well as a consequent rescheduled meeting.

 

Two weeks later, the employer issued further correspondence asserting that Govier had refused to attend the interview, advising of its preliminary findings that Govier had engaged in violent and unsuitable behaviour, and advising that her employment would be terminated should she not within five days show cause why her employment should not be terminated.

 

Govier was diagnosed with chronic post traumatic stress disorder and major depressive order. She alleged the timing, method and content of the employer’s correspondence was unjust and inappropriate leading to an aggravation her psychiatric injury.

 

District Court (Qld)

 

At first instance Andrews J determined that Unitingcare was not negligent in either causing the attack or failing to prevent it; but it was responsible for the psychiatric damage caused by the subsequent correspondence sent during its disciplinary investigation.

 

However, His Honour found that the employer did not owe a duty of care in relation to matters related to the contract of employment. Andrews J rejected Govier’s submission that the duty to provide a safe system of work extended beyond the conduct of tasks for which an employee is engaged, and included a duty to provide a safe system of investigation and decision making. On this reasoning Govier failed.

 

Court of Appeal (Qld)

 

The Court of Appeal was also unwilling to recognise this new category of duty of care and ultimately upheld the decision of the District Court. The Court held that Unitingcare was not liable as an employer and did not have a duty to avoid such harm in the course of a disciplinary investigation and decision making involving its employees.

 

High Court

 

On appeal, the issue before the High Court was whether an employer’s tortious duty of care extended to the conduct of an inquiry rather than the entitlement to conduct an enquiry solely arose under contract and thus was did not give rise to a tortious duty of care. During the hearing, Govier advanced her claims in both tort and contract, relying upon implied obligations under the contract of employment.

 

The High Court held that given the centrality of the contract of employment to the determination of the issues on which special leave was granted, the proceeding was not a suitable occasion on which to determine these issues. Accordingly, special leave was revoked.

 

Lessons for employers

 

The question as to whether investigations can be characterised as a tortious duty to provide a safe system of work was not determined by the High Court. As such employers can still rely upon the decision of the Queensland Court of Appeal. However, as the findings of the High Court were not based on the merits of the dispute but rather dismissed due to the absence of the critical evidence pertaining to the terms of the contract, this issue could still be tested by employees in the future.

 

In light of the High Court’s comments indicating a disinclination to separate tortious responsibility from contractual responsibility, employers may wish to consider the following measures to ensure it placates both its tortious and contractual obligations:

  • Contracts of employment should contain terms outlining the employer’s conduct of workplace investigations, and the obligation of an employee to actively participation in the investigation process.

  • Employees should be provided with a copy of the employer’s disciplinary policy and procedures.

  • Employers should be mindful of employees under investigation suffering a psychiatric injury which may expose the employer to higher duty of care under its contractual (or potential tortious) obligations.

  • Those conducting the investigations should have appropriate training, and ideally experience, and demonstrate an in-depth knowledge of the contractual obligations of both the employer and employee and the disciplinary policies and procedures.

 

Further information / assistance regarding the issues raised in this article is available from SMK Lawyers.

 

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