Does an employer owe a duty of care to employees when conducting workplace investigations? That is the question the High Court will rule upon after it granted a worker special leave to appeal the decision in Govier v The Uniting Church in Australia Property Trust (Q)  QCA 12.
The case is shedding further light on the processes adopted by employers in carrying out investigations, and the decision could have significant implications for employers.
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The employer’s investigation in this case followed an incident where a worker was hospitalised after being attacked by a colleague. During the course of the investigation, and while the worker remained in hospital and was certified as being unfit for work, the employer wrote to the worker requiring her to attend an interview for the purposes of the investigation. She was also advised that she was being stood down on full pay until the investigation was completed.
The worker did not attend the interview and presented a medical certificate to the employer. However, two weeks later, the employer wrote another letter to the employee claiming that the worker had refused to attend the interview and that its preliminary finding was that the worker had engaged in violent behaviour against the colleague. The worker was given five days to show cause as to why termination of her employment was not warranted.
The worker was ultimately terminated, and she was diagnosed as suffering from severe psychological illnesses.
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 the worker’s psychological condition. It will be argued on behalf of the worker that her injuries were reasonably foreseeable in the circumstances.
The employer, on the other hand, maintains that investigations are a contractual right and not affected by the tortious duty of care.
The central issue in the case is whether an employer’s duty of care extends to an employer’s conduct of an inquiry.
Both parties were ordered to file their submissions after the High Court granted leave for the appeal. The High Court is expected to hear the appeal in early 2018.
Govier v Unitingcare Community  HCATrans 183