In Issue

  • Employer may owe duty of care to employee to take reasonable steps to prevent psychiatric injury when conducting a workplace investigation

The Background

In 2008 and 2009, 4 management employees (the managers) at a Disability Services Queensland (the employer) office had allegations of bullying and harassment made against them by other workers. Each of the managers supervised a number of employees.

The employer undertook an investigation into the employees’ complaints. The investigation found that none of the allegations were substantiated.

The managers subsequently issued claims against the employer claiming that they were owed a duty of care throughout the investigation process, and when responding to a complaint made against them. The managers claimed to have suffered psychiatric injuries due to the employer’s failure to provide adequate support during the investigation.

The Decision at Trial

The District Court found that no such duty arose. The claims were dismissed.

The Issues on Appeal

On appeal, the court was asked to address four issues, namely:

  • Whether the employer owed the managers a duty of care to provide adequate support during its investigations.
  • If yes, was that duty breached?
  • If yes, was causation established?
  • If yes, should the matter be remitted for assessment of damages?

The Decision on Appeal

The majority of the Court of Appeal found that a duty to take reasonable steps to prevent psychiatric injury to an employee arises if the psychiatric injury is reasonably foreseeable in the case of that particular employee. Here, such a duty was found to exist in 3 of the 4 cases. In the remaining case the subject manager had been moved to a different role (at her request) during the investigation but did not lose her substantive position. This insulated her from the complaint and associated stress, and removed the foreseeability of psychiatric harm.

The Court of Appeal found that the duty had been breached in the other 3 cases. The employer had offered no support other than a free departmental counselling service. It had removed some of the managers from their usual roles and given them no meaningful workload, and made some of them continue to work with the various complainants in circumstances where they were subject to picketing by the union. In these circumstances the Court of Appeal found that the managers had been unreasonably isolated.

However, the managers’ evidence failed to establish that the breach of duty caused the psychiatric injury in each case, and causation was not established.


An employer may owe both a complainant and the subject of the complaint duties to take reasonable steps to support them, to avoid foreseeable psychiatric injury, including temporary alternative roles or locations if appropriate. Further, clear and documented communication should occur with all parties about available support services, and ways to manage working life, and minimise stress and disruption, during the investigation.

Hayes & Ors v State of Queensland [2016] QCA 191