Duty of care owed by an employer in workplace disciplinary investigations

Legal Directions

Govier v The Uniting Church in Australia Property Trust (Q) [2018] HCA Trans 65 (13 April 2018)

On 13 April 2018, the High Court considered the extent to which an employer assumes responsibility for the inquiry or the conduct of any investigation in relation to its employees under the Workers’ Compensation & Rehabilitation Act 2003 (Qld) (WCRA).

Justices Bell, Gageler, Nettle, Gordon and Edelman of the High Court revoked the grant of special leave to appeal from the judgment of the Queensland Court of Appeal, effectively dismissing Govier’s appeal and upholding the decision of the Queensland Court of Appeal. However, the mechanism by which the High Court revoked the special leave gives rise to the potential for the issue to be retested.


Govier suffered both physical and psychiatric injuries following an attack by a fellow employee. She was hospitalised as a consequence of her injuries. On the day after the attack Unitingcare, the employer, issued a letter to Govier instructing her to attend an investigation interview the following day. Govier was also directed not to discuss the incident with any other employee, and was stood down on full pay pending the outcome of the investigation. Govier claimed she was too ill to attend the scheduled interview as well as a subsequent rescheduled meeting.

Two weeks after the incident, Unitingcare issued a further letter to the plaintiff asserting that Govier had refused to attend an interview, advising of its preliminary findings that Govier had engaged in violent and inappropriate behaviour, and notifying her that her employment would be terminated should she not within five days show cause why her employment should not be terminated.

Govier suffered a chronic post traumatic stress disorder and a major depressive order. She claimed the timing, manner and content of Unitingcare’s letters caused a sense of injustice and betrayal and aggravated her psychiatric injury.

District Court (Qld)

Judge Andrews SC determined Unitingcare was not negligent in causing the attack or failing to prevent it, but it was responsible for the psychiatric harm caused by the letters sent during its investigation.

However, His Honour found that Unitingcare did not owe a duty of care in relation to matters incidental to the contract of employment. The Judge rejected Govier’s submission that the duty to provide a safe system of work extended beyond the conduct of tasks for which an employee is engaged, and included a duty to provide a safe system of investigation and decision making. Thus, Govier failed at first instance.

Court of Appeal (Qld)

The Court of Appeal also rejected Govier’s submission stating that it was also unwilling to recognise this new category of duty of care and ultimately upheld the decision of the District Court. The Court held that Unitingcare was not liable as an employer did not have a duty to avoid such harm in the course of investigation and decision making involving its employees.

Matters before the High Court

On appeal, the issue before the High Court was whether an employer’s tortious duty of care extended to the conduct of an inquiry rather than the entitlement to conduct an enquiry solely arose under contract and thus was did not give rise to a tortious duty of care. During the hearing, Govier advanced her claims in both tort and contract, relying upon implied obligations under the contract of employment.

Edelman J confirmed that the contractual obligation and the tortious obligation were both rooted in the same concept of an assumed responsibility, but decided that the assumed responsibility was exclusively shaped by the terms of the contract. Similarly, Gageler J held that it was almost impossible, conceptually, to separate the tortious context from the broader legal context, and noted the plaintiff correctly conceded that the tortious duty would be moulded, in some respects, by the terms of the contract.

Gordon J pointed out that the contract of employment between Govier and Unitingcare was not exhibited at trial, noting that a court does not look at the tort, in terms of the duty and scope, without understanding the contractual framework.

The High Court held that given the centrality of the contract of employment to the determination of the issues on which special leave was granted, the proceeding was not a suitable occasion on which to determine these issues. Accordingly, special leave was revoked.


The issue as to whether investigations form an aspect of the tortious duty to provide a safe system of work was not resolved by the High Court, and employers can rely upon the determination of the Queensland Court of Appeal. However, as the decision by the High Court was not based on the merits of the argument but dismissed due to the absence of the key evidence of the terms of the contract, this issue may well be tested by employees in the future.

In light of the High Court’s comments suggesting an unwillingness to separate tortious responsibility from contractual responsibility, an employer may wish to consider the following measures to ensure it satisfies its tortious and contractual obligations:

  • Contracts of employment should include provisions outlining the employer’s conduct of, and the requirement of an employee’s active participation in, all workplace investigations.
  • Employees should be provided with a copy of the employer’s disciplinary policy and procedures.
  • Employers should be mindful of employees under investigation suffering a psychiatric injury which may expose the employer to higher duty of care under its contractual (or potential tortious) obligations.
  • Staff conducting the investigations have training (and ideally prior experience), and demonstrate thorough knowledge of the employee’s and employer’s obligations under the contract of employment and disciplinary policies and procedures.

Further information / assistance regarding the issues raised in this article is available from the author Megan Venus, Senior Associate, or your usual contact at Moray & Agnew.

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