Australia: Mental health and workplace investigations: what are your obligations?

Statistics suggest that approximately 45% of Australians aged between 16 and 85 will experience a mental illness at some point in their life.1 As a result, there is a greater awareness of mental illness in the community at large, and employers are increasingly confronting myriad complex issues during each stage of the employment relationship, from recruitment right through to dismissal.

In recent cases from across the country, courts and tribunals have highlighted the importance of both considering the impact of workplace investigations on employees' mental health and the consequences of failing to do so.

This article considers three such cases and their implications for employers.


Ms Robinson was a Director of Nursing for the Cape York Health Service based in Weipa, Queensland (the Health Service). Ms Robinson alleged that she was subjected to repeated managerial mistreatment by the Health Service's CEO, which caused her to develop a psychiatric injury, to the extent that she was unable to return to work.

The Queensland Supreme Court found that the Health Service had breached its duty to take reasonable care by failing to take 'timely and determinative action' on complaints made against Ms Robinson by an employee, and by Ms Robinson against that same employee.2 By failing to investigate complaints, or failing to find the complaints were vexatious, the CEO (and vicariously the Health Service) allowed the issue to cause conflict, uncertainty and humiliation within the workplace.

The Court found that the risk of serious psychiatric harm was reasonably foreseeable to the Health Service given Ms Robinson's concern about the complaints against her. Notably, the Court commented that a reasonable employer would have considered that its response to complaints bore heavily upon the probability of injury occurring to its employees. Justice Henry stated as follows:

In an era when the potentially grave psychological harm done by workplace harassment and bullying is well known, unjustified blaming, humiliation, belittling, isolation, undermining and contemptuous disregard of an employee by a CEO was conduct collectively raising a foreseeable and not insignificant risk of psychiatric injury.3

The 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 New South Wales Workers Compensation Commission found Woolworths Limited (Woolworths) liable for a major depressive disorder which an employee developed following a workplace investigation into his conduct.4

Woolworths conducted a workplace investigation after the employee repeatedly failed to follow protocols and procedures for entering and exiting the store, which led to allegations of stealing.5 The investigation ultimately concluded that the allegations of stealing were not substantiated. Despite this, the employee was subsequently placed on a performance improvement plan as he had failed to comply with the company's policies and procedures.6 The employee continued working for approximately one month after the workplace investigation, until a colleague told the employee that some staff members had asked why he had not been sacked because he had been stealing from the store.7

The employee subsequently applied for workers' compensation for permanent impairment, claiming that he was so distressed from hearing the comments, being ostracised at work and having his reputation ruined, that he could not work anymore. The employee claimed that other employees being made aware of the investigation caused him injury. Further, the manner in which the employer conducted the investigation (which included having police search his car in front of other employees) resulted in the circulation of rumours even after the employee had been cleared of the allegations.8

Woolworths argued that the investigation and disciplinary process constituted 'reasonable action' under section 11A of the Workers Compensation Act 1987 (NSW), which provides a defence against claims relating to injury arising wholly or predominantly from disciplinary action. Woolworths contended that the process should be considered as a whole, arguing that the colleagues' awareness of the stealing allegations, as well as the effect this had on the employee, was part of that process.

Arbitrator Egan agreed that the allegations, record of interview and the implementation of a performance improvement plan did in fact constitute reasonable action.9 However, he found that the gossip and co-workers' awareness of the allegations did not reasonably constitute a part of the disciplinary process.10 Arbitrator Egan accepted that the distress of being questioned by a colleague about the allegations and being told of others' knowledge, created the employee's perception that there was a 'pack of dogs' mentality and that his reputation was ruined.11 It was accepted that this perception was the main factor causing the development of his illness. Ultimately, Arbitrator Egan found Woolworths liable for the employee's injury.


The importance of considering employees' wellbeing during workplace investigations is set to take centre stage in an upcoming appeal, in which the High Court will consider whether an employer owes a duty of care to an employee when conducting a workplace investigation. The decision could have significant and widespread implications.

The High Court granted an employee special leave to appeal the decision in Govier v The Uniting Church in Australia Property Trust.12 This decision concerned the liability of a disability services provider when one of its employees attacked a colleague (Ms Govier), who then required hospitalisation (Incident). Ms Govier feared she would die during the attack and subsequently developed chronic post-traumatic stress disorder and depressive disorder.

Immediately after the Incident, Ms Govier telephoned her supervisor and advised him that she had been attacked by a colleague, that she had telephoned the police, and that she was going to hospital. Following this, the employer immediately commenced an investigation. On the same day as the Incident, the employer prepared and delivered a letter to the Ms Govier's home which required her to attend an investigative interview on the following day and directed her not to discuss the incident with any other person. The letter also outlined that Ms Govier was stood down on full pay pending the determination of the investigation. Ms Govier received this letter while she was still in hospital as a result of the Incident.

Ms Govier did not attend the interview and presented a medical certificate to her employer which stated that she was unfit for work. However, two weeks later, the employer wrote another letter to Ms Govier claiming that she had refused to attend the interview and that its preliminary finding was that she had engaged in violent and inappropriate behaviour against her colleague. Ms Govier was given five days to show cause as to why termination of her employment was not warranted. Ms Govier never returned to work and her employment was ultimately terminated.

Ms Govier claimed damages for the aggravation of her psychiatric injury, arguing that the content of the two letters aggravated her chronic, post traumatic and major depressive disorders, and, had she not received the letters, her injuries would not have been so severe.

At first instance in the District Court of Queensland, Ms Govier argued that the decision by her employer to issue the letters in connection with the workplace constituted a breach of a duty of care owed by the employer. Ms Govier was unsuccessful and appealed to the Queensland Court of Appeal (QCA). The QCA ultimately agreed with the District Court, finding that no damages were payable because the employer did not have a duty to avoid such harm in the course of investigating the incident. The QCA followed the authority of State of New South Wales v Paige13 (Paige). In that case, the NSW Court of Appeal found that the appellant did not owe a duty of care to conduct its disciplinary procedures so as to avoid psychiatric harm to the respondent.14

In the High Court, it will be alleged that the employer knew or ought to have known that sending the first letter immediately after the incident would aggravate Ms Govier's psychiatric injuries. It will also be argued that Ms Govier's injuries were reasonably foreseeable in the circumstances. The appeal seeks to clarify the application of the rule in Paige to workplace investigations in which the employer has control over the investigative process, as distinct from the facts in Paige where the issue turned on a disciplinary regime governed by statute.15 The High Court is expected to hear the appeal early this year.


Mental illness in the workplace is an area for all employers to bear in mind when conducting workplace investigations.

Each of the three cases discussed above demonstrate the potential for flawed workplace investigations to cause psychological injury or exacerbate pre-existing mental illnesses. It is therefore crucial for employers to ensure that workplace investigations are conducted sensitively and in a timely manner. Employers should, as far as practicable, keep investigations confidential and have regard to any potential mental health issues suffered by employees.

In addition to the broad takeaways outlined above, we suggest that when undertaking workplace investigations employers should:

  1. Ensure that employees, particularly senior employees, have the requisite knowledge of company policies and are appropriately trained on how to effectively manage workplace investigations.
  2. Deal with allegations as soon as practicable – delay can significantly increase the risk of mental health problems arising for those involved in the allegations.
  3. Ensure employees involved in the investigation are aware of their confidentiality obligations.
  4. Carefully consider which employees need to be involved and made aware of the investigation and ensure the information is contained to just those employees and that all other matters related to the investigation are kept confidential.


1 Australian Bureau of Statistics, National Survey of Mental Health and Wellbeing: Summary of Results (2007).

2 Robinson v State of Queensland [2017] QSC 165, [193]. The common law obligation of an employer to take all reasonable steps to provide a safe system of work and to take reasonable care to avoid psychiatric injury is founded in cases including Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44 (see [2017 QSC 165, [11]-[13]).

3Ibid [304].

4 Campbell v Woolworths [2017] NSWWCC 213.

5 Ibid [12].

6 Ibid [16].

7 Ibid [21].

8 Ibid [14], [42].

9 Ibid [37].

10Ibid [39] – [40].

11 Ibid [44].

12 [2017] QCA 12.

13 [2002] NSWCA 235.

14 Ibid [132].

15 Transcript of Proceedings, Govier v Unitingcare Community [2017] HCATrans 183 (15 September 2017).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Chambers Asia Pacific Awards 2016 Winner – Australia
Client Service Award
Employer of Choice for Gender Equality (WGEA)

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions