In Australia, all jurisdictions are covered by WHS legislation, where employers, so far as is reasonably practicable, are required to provide and maintain a working environment that is safe and without risks to health, including psychological health.

It also makes good business sense to prevent or minimise risks to psychological health. Work environments that do not adequately manage these risks can incur significant human and financial costs. Under the model WHS Act, PCBUs have a duty to protect workers from psychological hazards as well as physical hazards.

The best way to do this is design work systems and processes, as well as workplaces, that protect workers from harm to their psychological health and safety; monitor the health of workers and workplace disorders, and consult with workers. Employers also have a duty to make sure work is safe for those returning after a workplace illness or injury. Workers have a duty to take reasonable care of their health and safety and not adversely affect the health and safety of others. They must also cooperate and comply with reasonable instructions on health and safety matters. This might include working to job descriptions to avoid role conflict, or following workplace policies to prevent bullying.

In recent cases, courts and tribunals have emphasised the importance of considering the impact of workplace investigations on employees’ mental health and the consequences for failing to do so. In line with that trend, the High Court is set to consider the existence and scope (if any) of the duty of care owed by employers to employees when carrying out a workplace investigation. This is a significant development, noting that to date, case law on this point has rejected the notion that an employer’s duty to provide a ‘safe system of work’ extends to include an obligation to supply a safe system of investigation and disciplinary decision making in the workplace.

In a recent case in Queensland, an appellant, an employee of the respondent, was attacked by another employee when they swapped caring shifts. The Queensland Court of Appeal (QCA) held that the respondent neither caused nor negligently failed to stop the attack, but did hold that it exacerbated the psychiatric harm done to the appellant when it sent letters that stood her down while the matter was under investigation, and accepted the attacker’s view that the incident was the appellant’s fault. The QCA ultimately held, however, that no damages were payable because the provider did not have a duty to avoid such harm in the course of investigating the incident.

The High Court is expected to hear the appeal this year so watch this space. In the interim employers should be prudent in ensuring workplace investigations are conducted sensitively and in a timely manner, having regard to any potential mental health issues suffered by employees.

Govier v The Uniting Church in Australia Property Trust [2017] QCA 12

Mental health is an important issue in every workplace. Business SA's Mental Health in the Workplace course covers the legal obligations of employers and how to best manage workers with mental health injuries. To find out more click here, or contact Cindy Jackway on (08) 8300 0247 or email [email protected]