Resources: Blog

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


Appeal dismissed

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.

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.


Similar articles

Commission finds employer’s suspicion of an employee’s misconduct was not a valid reason for dismissal

Under suspicion

If considering taking disciplinary action due to an employee’s misconduct, it is critical that an employer makes a decision based on wrongdoing as opposed to a mere suspicion of wrongdoing.


Court fines PCBU $60,000 for failing to re-assess the risks associated with changing site conditions

Set and forget

Persons conducting a business or undertaking (PCBUs) have a positive obligation to ensure, so far as reasonably practicable, the health and safety of workers and others.


Workplace Relations Review

Cases and Legislation September 2019

Employers' duty of care for employees, duty of care and contributory negligence, workers compensation and working from home, multiple roles and overtime, general protections and reason for adverse action.


Commission finds mask mandate to be a lawful and reasonable direction

Mask up

Employees have a duty to comply with lawful and reasonable directions from their employer. In the current COVID-19 context, a key concern for employers is whether it is lawful and reasonable to issue directions related to safety matters arising from the pandemic.


Lack of consultation rendered mandatory vaccination requirement unreasonable

Talk before you walk

Consultation with employees always plays an important part when introducing changes in the workplace. Under work health and safety legislation, employers have a duty to consult with their workers as far as reasonably practicable in relation to health and safety matters.


Offers of alternative employment in redundancy cases

An offer you can refuse

In most cases of redundancy, employers have an obligation to consult with affected employees about the proposed redundancy and consider whether or not anything can be done to mitigate or minimise the impact on the employee, such as redeployment or obtaining other acceptable employment for the employee.


Let's talk

please contact our directors to discuss how ouR expertise can help your business.

We're here to help

Contact Us
Let Workplace Law become your partner in Workplace Relations.

Signup to receive the latest industry updates with commentary from the Workplace Law team direct to you inbox.