Appeal dismissed – Investigation letters issued to ill employee not a breach of duty of care

In Govier v UnitingCare Community [2017] QCA 12, an employee’s appeal was dismissed, confirming an earlier decision that her employer did not breach any duty of care when it issued letters to the employee in the course of an investigation, resulting in aggravation of her psychiatric conditions.

The employee in this case was a disability worker based in Queensland. She was involved in a violent incident with a co-worker when the two crossed paths at the changeover of shifts. The co-worker accused the employee of stealing her handbag and an altercation ensued.

The employee suffered psychiatric and physical injuries as a result of the incident and was hospitalised.

The employer was made aware of the incident and promptly commenced an investigation. The day following the incident, it sent a letter to the employee (which she received in hospital) requesting that she attend an investigation interview the next day.

The letter informed the employee that an investigation was being conducted into the employee’s conduct and that she was being placed on paid suspension until the investigation was concluded. The letter also directed the employee not to discuss the incident with any other employees.

The employee did not attend the investigation interview because she was too ill. The interview was re-scheduled and cancelled a second time, which prompted the employer to request that the employee obtain a doctor’s certificate. The employee saw her GP and was certified unfit to work for a further two weeks.  

During this time, the employer continued its investigation and conducted an interview with the co-worker involved in the violent incident. The co-worker essentially laid blame for the entire episode at the feet of the employee.

Following this interview, the employer sent a second letter to the employee setting out its preliminary findings including that the employee had kicked, hit and pushed during the incident, had breached the employer’s code of conduct and had engaged in behaviour of a violent and inappropriate nature. The letter also invited the employee to provide written responses to the allegations along with reasons as to why her employment should not be terminated.

The employee never returned to work and her employment was formally terminated some two years later.

The employee subsequently made a claim against the employer alleging that its negligence resulted in the assault causing post traumatic stress disorder and serious depressive disorder, conditions which were then aggravated by the two letters.

The primary judge found that the violent incident was not reasonably foreseeable and so the employer could not be held liable for it.

In relation to the two letters, the employee argued that her employer’s duty to provide safe systems of work for tasks performed by employees should extended to providing safe systems of investigation and decision-making about incidents involving employment contract matters. The primary judge did not accept that such a duty did or should exist.

The primary judge found that the timing and content of the letters did result in aggravation of the employee’s psychiatric conditions and this was reasonably foreseeable.

Significantly, however, the primary judge found the employer did not owe the employee a duty of care because the letters were sent to the employee as part of a process investigating whether there was misconduct by the employee committed in the course of her employment.

Consequently the employee failed in her claim against her employer. On appeal, the Queensland Court of Appeal confirmed the primary judge’s decision. 

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

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