The position established in State of New South Wales v Paige, specifically that an employer does not owe a duty of care to avoid causing psychiatric harm to an employee while conducting workplace investigations, remains applicable in Queensland.

In Issue

  • Whether an employer owes a duty to avoid causing psychiatric harm to an employee while conducting workplace investigations.

The Background

Ms Toni Govier was employed by The Uniting Church of Australia Property Trust as a disability worker. On 3 December 2009, Ms Govier was attacked in the course of her employment by another co-worker. As a result, Ms Govier sustained physical and psychiatric injuries and was hospitalised.

Following the incident, The Uniting Church issued a letter to Ms Govier requiring her to attend an investigative interview to discuss the incident. The letter advised Ms Govier that an investigation was underway in relation to her conduct and she should not discuss the incident with any other employee. Ms Govier did not attend the interview on the basis that she was too ill. She also did not attend a subsequently rescheduled interview.

On 18 December 2009, Ms Govier received a second letter from The Uniting Church advising that because she had failed to attend the interviews, preliminary findings had been made against her, specifically that she had engaged in “behaviour of a violent and inappropriate nature”, and her employment would be terminated if she failed to otherwise show cause within five days. The letters had been issued despite Ms Govier submitting medical certificates certifying her unfit for work.

In addition to claiming damages for her psychiatric injuries on the basis that The Uniting Church failed to provide a safe system of work, Ms Govier also argued that The Uniting Church breached its duty as an employer to take reasonable care to avoid causing psychiatric harm to employees while conducting disciplinary investigations.

The Decision at Trial and on Appeal to the Court of Appeal (Qld)

The trial was heard before Judge Andrew SC of the District Court. The trial judge found that The Uniting Church did not owe a duty of care to employees in relation to matters incidental to the investigative process.

Ms Govier was also unsuccessful on appeal, where the decision in State of New South Wales v Paige was followed – specifically that an employer does not owe a duty to an employee to take reasonable care in the course of conducting work place investigations.

The High Court

Before the High Court, Ms Govier sought to distinguish the matter from that of State of New South Wales v Paige and argued that The Uniting Church had a positive duty under both tort and contract to not cause harm to its employees while conducting its investigations, and the duty was breached when harm was caused (to Ms Govier) by the sending of the two letters.

It was noted that Ms Govier’s employment contract was not in evidence in the appeal.

The High Court held that Ms Govier’s contract of employment was central in determining the issues surrounding The Uniting Church’s contractual and tortious obligations, and as the employment contract was not in evidence, Ms Govier’s special leave was ultimately revoked.

Implications for you

For the time being, the common law position in Queensland continues to follow the decision in State of New South Wales v Paige. Specifically, an employer does not owe a duty of care to employees so as to avoid causing psychiatric harm in the course of conducting disciplinary investigations.

This rule is premised on there being other remedies which lie against an employer for an errant investigative process.

Govier v The Uniting Church in Australia Property Trust (Q) [2018] HCATrans 65