Govier v Unitingcare Community [2017] HCATrans183 (15 September 2017)

Workplace investigations are increasingly becoming a feature of the employment landscape, and as a result are attracting significant attention from tribunals and the Courts.

In particular, the Fair Work Commission and the Courts have indicated a willingness to assess and make findings in respect of the processes adopted by an employer in arrying out a workplace investigation, together with the duties and responsibilities they owe in relation to the conduct of that investigation.

In line with that trend, the High Court is set to consider the existence and scope (if any) of the duty of care owed by employers to employees when carrying out a workplace investigation. This is a significant development, noting that to date, case law on this point has rejected the notion that an employer’s duty to provide a ‘safe system of work’ extends to include an obligation to supply a safe system of investigation and disciplinary decision making in the workplace.

The case is Govier v Unitingcare Community [2017], and special leave was granted before the High Court on 15 September 2017. The relevant facts are summarised below.

The facts

In Govier, a workplace investigation was instigated following an incident involving two Uniting Care employees (namely Ms Govier and ‘MD’). Both employees were engaged as Disability Workers and were required to attend off-site premises in order to provide high level care to disabled persons. There was a documented history of ill feeling between Ms Govier and MD.

On 3 December 2009, Ms Govier alleged (and the Courts ultimately accepted) that she was viciously attacked by MD, and that the attack resulted in her ‘escaping the off-site premises in her car’ and taking herself to hospital. She was subsequently certified as being unfit for work until at least 21 December 2009.

In the interim, and while Ms Govier remained in hospital, Uniting Care commenced a workplace investigation into the incident.

As would be the case in any workplace investigation, Uniting Care commenced its processes by issuing a letter to Ms Govier. That letter, which was issued the day after the alleged attack, required that Ms Govier attend an “investigation interview” later that week, that she not speak with anyone in the organisation about the Incident and that she was to be stood down on full pay pending the outcome of the investigation. As she was too ill, Ms Govier did not attend the investigation interview and a medical certificate was submitted by Ms Govier to that effect.

Two weeks later, Uniting Care issued a further letter to Ms Govier as part of its investigation. That letter advised Ms Govier that - as she had ‘refused’ to attend the investigation interviews - Uniting Care had made a series of preliminary findings based off an interview it had held with MD. Those findings included that Ms Govier had herself engaged in ‘violent, inappropriate behaviour’ against MD and Ms Govier was invited to show cause within five days as to why her employment should not be terminated.

Ms Govier never returned to work, and her employment was ultimately terminated by Uniting Care. She suffered a chronic post-traumatic stress disorder and major depressive order.

The issue

One of the issues in the case - and the one that is now before the High Court - is whether Uniting Care’s decision to issue the letters in connection with its workplace investigation, constituted breach of any duty of care it owed to Ms Govier at law.

Counsel for Ms Govier submitted that - yes, it did constitute a breach of Uniting Care’s duty of care. This was because issuing the first letter in the immediate aftermath of the incident amounted to conduct which it knew (or which it ought to have known) would aggravate Ms Govier’s fragile psychiatric state. In that context, and noting the timing, manner and content of Uniting Care’s letters, it was said that the psychiatric injury ultimately suffered by Mr Govier was reasonably foreseeable and was therefore attributable to Uniting Care.

Counsel for Uniting Care submitted instead that - no, it could not constitute a breach of any duty of care owed by Uniting Care because the right to undertake a workplace investigation into the conduct of an employee was a matter of contract. It further argued that recognising this extension to an employer’s duty of care would be inconsistent with the existence of the statutory unfair dismissal jurisdiction and would effectively create an alternative avenue for uncapped remedy in the circumstances.

The determination

The case has been remitted for listing and will likely be heard before the High Court early next year. The High Court’s determination of this matter has the potential to significantly impact upon the way that employers will be required to approach workplace investigations moving forward including:

  • what factors an employer will need to take into account when considering the appropriate time and method of issuing any letter as part of a workplace investigation
  • what content should be included in any such letters, including whether it is reasonable in all the circumstances to communicate preliminary investigation findings in writing
  • to what extent an employee’s existing physical or mental health condition should feature in an employer’s approach to workplace investigations.

We will report on the findings of this case once handed down by the High Court, together with its implications for employers. In the meantime, you may wish to seek legal advice before initiating any workplace investigation.

Decisions to date:

Govier v Unitingcare Community [2017] HCATrans183

Govier v The Uniting Church in Australia Property Trust (Q) [2017] QCA 12

Govier v Unitingcare Community [2016] QDC 56