The decision in Secretary, New South Wales Department of Education v SafeWork NSW (No 2) (Department of Education v SafeWork) provides a timely reminder of the breadth of WHS obligations, particularly in the context of disciplinary investigations and the treatment of employees while such processes are undertaken.

1. Background

On 4 April 2023, the New South Wales Department of Education (Department) issued a letter to an employee with 14 years’ service (Employee), advising that she was the subject of a disciplinary investigation. The letter informed the Employee that she would be placed on alternative duties at a different location pending completion of the investigation. However, it did not contain any particulars of the allegations, stating only that the complaint related to the Employee’s “interactions with multiple staff members over several years.” After receiving the letter and returning home, the Employee attempted suicide.

The Employee requested to be returned to her usual workplace six days after receiving the letter and attempting suicide. That request was refused by the Department, and the Employee remained on alternative duties. Notably, the Department did not provide particularised allegations until approximately three months after the initial letter was issued.

2. The SafeWork Complaint

In November 2023, the Employee made a complaint to SafeWork NSW alleging exposure to psychosocial hazards due to significant delays in finalising the investigation, a lack of communication regarding the progress of the investigation; and her being re-assigned to administrative duties at a different location. The Employee alleged these contributed to a deterioration in her mental health (Complaint). As a result, the Employee claimed that she suffered a psychological injury that substantially reduced her capacity to work.

3. Improvement Notices Issued by SafeWork NSW

SafeWork NSW made enquiries into the Complaint and subsequently issued two Improvement Notices (Notices) to the Department pursuant to the Work Health and Safety Act 2011 (NSW) (WHS Act).

• First Improvement Notice – Investigation Process

The first Improvement Notice alleged that the Department’s contravened section 19 of the WHS Act and clause 55C of the Work Health and Safety Regulations 2017 (NSW) (WHS Regulations) as a result of exposing workers to psychosocial risks because:

• misconduct and performance investigations did not ensure they were completed in a timely manner; and
• there were no structured process or defined timeframes for providing regular, formal and documented updates to workers during investigations.

To remedy the alleged breach, SafeWork NSW directed the Department to (in summary):

• provide workers with clear investigation timelines;
• implement regular, formal and documented progress updates;
• consult with workers in the design of the investigation system;
• review and update the system to ensure its ongoing effectiveness; and
• provide appropriate information, training and instruction to staff regarding the investigation process once implemented.

• Second Improvement Notice – Alternate Duties

The second Improvement Notice alleged that the Department contravened section 19 of the WHS Act and clause 55C of the of the WHS Regulation by assigning employees to alternate duties during investigations. It is alleged that assigning duties that were not commensurate with employees’ usual roles exposed workers to psychosocial risks, including harm arising from unsuitable tasks or work environments.

To address the alleged breach, the Department was directed to:

• ensure that alternate duties assigned during investigations are appropriate to an employee’s usual role to minimise psychological harm (Alternative Duties System);
• consult with workers in developing the Alternative Duties System;
• regularly review and update the system to ensure it remains effective; and
• provide workers with information, training and instruction once the Alternative Duties System is implemented.

To address the alleged breach, the Department was directed to:

• ensure that alternate duties assigned during investigations are appropriate to an employee’s usual role to minimise psychological harm (Alternative Duties System);
• consult with workers in developing the Alternative Duties System;
• regularly review and update the system to ensure it remains effective; and
• provide workers with information, training and instruction once the Alternative Duties System is implemented.

4. Department appeal the Notices to the Industrial Relations Commission

The Department sought internal review of the Notices. The internal review upheld the Notices. The Department appealed to the New South Wales Industrial Relations Commission (Commission), seeking to have the Notices set aside on three grounds:

1. Ground One: The inspector misconstrued the psychosocial hazard provisions under the WHS Regulations.
2. Ground Two: The inspector did not have a reasonable belief that the Department contravened the WHS Act and WHS Regulations (WHS Laws).
3. Ground Three: In the alternative, the directions contained in the Notices were not reasonably practicable for the Department to comply with.

5. Decision of the Commission

Commissioner O’Sullivan dismissed the Department’s appeal and upheld the Notices, with one limited exception. The direction requiring the Department to provide formal, regular and documented communication regarding the progress of an investigation was set aside, to the extent that the evidence did not establish that the Department’s existing reporting system was itself deficient.

Ground One – Alleged Misconstruction of Psychosocial Hazard Provisions

The Department argued that the psychosocial hazard provisions were uncertain and inconsistently defined, rendering compliance impractical. It further contended that the inspector relied improperly on a subjective complaint rather than an objectively identifiable risk.

The Commissioner rejected these submissions, finding that the psychosocial WHS Regulations do not impose new duties but clarify and give effect to the existing duty to manage risks to psychological health so far as is reasonably practicable. Importantly, the Commissioner confirmed that duty holders must manage psychosocial risks even where workers experience those risks differently. The regulatory framework was held to be sufficiently certain and workable. Ground One was therefore dismissed.

Ground Two – Reasonable Belief

The Department contended that the inspector lacked the requisite “reasonable belief” that a contravention of WHS Laws had occurred and therefore lacked powers to issue the Notices. While this ground succeeded in part, the Commissioner otherwise rejected it. The Commissioner held that the inspector had a reasonable basis to issue the Notices, given that:

• the investigation was permitted to continue for approximately 10 months without adequate safeguards, and
• the Department’s alternative duties process lacked structured protections against psychosocial risks.

However, the Commissioner set aside the specific direction to provide formal, regular and documented communication throughout the investigation, noting the inspector’s concession that the existing reporting system was not inherently deficient.

Ground Three – Reasonably Practicable Measures

The Department argued that the measures required by the Notices were not reasonably practicable, particularly given the size of its workforce. This argument was rejected. The Commissioner found that many of the required measures were already in place or were readily achievable. Relevantly, the Commissioner noted the consultation duty does not require that every individual employee should be consulted. Rather, it can occur through representative mechanisms, and the scale of an organisation does not absolve it from compliance with consultation duties.

6. Key Takeaways for Duty Holders

Department of Education v SafeWork NSW provides important guidance for organisations conducting workplace investigations in a psychosocial safety context. In particular, the decision reinforces that:

• An employee’s heightened vulnerability to psychosocial hazards does not diminish a duty holder’s obligation to eliminate or minimise risks.
• Investigation policies and procedures must operate consistently, with investigations progressed in a timely manner and clear timelines communicated at the outset, or where such timeline cannot be achieved that this is communicated.
• Before placing an employee on alternate duties during an investigation, careful assess should be considered whether those duties may give rise to psychosocial risks, particularly where duties are substantially different, menial, or poorly defined.
• There must be ongoing communication during and throughout the investigation process.

If you would like to understand how these developments may affect your business or review your current workplace practices, please contact Luisa Gonzaga, Principal, Employment & Safety, luisa.gonzaga@madgwicks.com.au

The information provided in this article is general in nature and cannot be relied on as legal advice, nor does it create an engagement. Please contact one our lawyers listed above for advice about your specific situation.