Link to KEY INSIGHT KEY INSIGHT
Link to No investigation, regardless of its importance, can be prioritised over an individual’s health and safety. Rather, the investigation needs to proceed in a manner that ensures, so far as is reasonably practicable, the health and safety of those involved. No investigation, regardless of its importance, can be prioritised over an individual’s health and safety. Rather, the investigation needs to proceed in a manner that ensures, so far as is reasonably practicable, the health and safety of those involved.
Organisations are increasingly at risk of investigation and prosecution by work health and safety (WHS) regulators for how they conduct workplace investigations.
Recent court decisions have firmly established that investigation processes themselves constitute psychosocial hazards, and the standards expected of organisations in managing psychosocial risks during investigations are becoming both clearer and more stringent.
This article examines:
- organisations’ obligations to identify and minimise psychosocial hazards arising in the course of workplace investigations, including lessons from recent WHS regulator enforcement action and prosecutions;
- the investigation of psychosocial risks themselves, such as allegations of bullying, harassment and other harmful workplace behaviours and practices; and
- the importance of approaching workplace investigations not only through a traditional employment law lens, but also through the lens of WHS law, whereby investigations are recognised as systems of work that must be designed and managed to control foreseeable psychosocial risks.
In rethinking workplace investigations through a WHS lens – it is first critical to consider whether a workplace investigation is required at all. If a risk can be identified and assessed, and mitigation actions implemented, an investigation to establish particular facts may be unnecessary and could expose workers to unnecessary trauma. A workplace investigation will, of course, be required if disciplinary measures are being considered as a mitigation measure.
Without applying a broader WHS perspective to workplace investigations, investigation practices may inadvertently create or exacerbate psychosocial risks, exposing individuals to harm during the investigation process. A narrow approach may also lead organisations to delay implementing control measures until allegations are proven, rather than proactively managing foreseeable psychosocial risks on an organisation-wide basis.
Link to Obligations to identify and minimise psychosocial hazards during workplace investigations Obligations to identify and minimise psychosocial hazards during workplace investigations
Courts have now confirmed in emphatic terms that investigation processes constitute psychosocial hazards for the purpose of WHS law. Organisations therefore have duties to eliminate or minimise psychosocial risks arising from investigation processes, so far as is reasonably practicable.
WHS regulations and psychosocial risk management codes of practice in each jurisdiction impose specific requirements for control measures, including (subject to some variation) that controls be implemented in accordance with the hierarchy of controls. This requires a focus on higher order controls (such as redesigning how investigations are conducted) instead of relying on lower order controls (such as referral to EAP or other coping strategies for participants).
Recent decisions and publicly reported examples of investigations that have “gone wrong” provide practical insights as to what is expected of organisations in managing psychosocial risks during investigations. Key insights include:
- While individuals may respond differently to psychosocial hazards arising during investigations, this does not diminish an organisation’s obligation to identify, assess and control those risks.
- It is not acceptable to follow a prescribed investigation process to completion, without regard for the psychosocial impact of that process on those involved. Organisations must monitor the impact of the investigation on individuals in real time. Investigators must be empowered to adjust, suspend or modify the process where necessary to mitigate risks to psychological health.
- Timely escalation mechanisms are critical. Where there are indications that participants are experiencing distress, or there is a risk of self-harm, organisations must act immediately, including by engaging appropriate supports where necessary.
- Investigations must be robust, credible, and consistent with principles of organisational justice. Even where evidence suggests there has been a technical breach of employment policies or codes of conduct, this does not necessarily mean disciplinary action is warranted.
- Protracted investigations may create and exacerbate psychosocial risks. The mere existence of an investigations policy prescribing timeframes is insufficient to control those risks, unless supported by effective safeguards to ensure investigations are progressed and finalised within those timeframes in practice.
- Inadequate communication about the progress, status and expected duration of an investigation can create or exacerbate psychosocial risks. Effective systems should include structured and regular communication to reduce uncertainty and support worker wellbeing during the process.
- Failing to provide sufficiently particularised allegations at an early stage can create uncertainty and distress, giving rise to psychosocial risks. Investigation processes should require careful consideration of the psychological impact of both providing and withholding information.
- The identification and allocation of alternative duties during investigations can also give rise to psychosocial risks. Processes that rely on unilateral decision-making or that assign duties not commensurate with a worker’s position may expose the worker to psychosocial hazards including role underload, role conflict and lack of role clarity.
- Where complaints are made about a direct manager, maintaining existing reporting lines may pose psychosocial risks. Organisations should have structured processes to guide decision-making, including assessing the seniority of the parties, the likely psychological impact of the worker continuing to report to the manager and whether alternative reporting arrangements are required.
Link to Investigating psychosocial risks Investigating psychosocial risks
WHS laws (in particular, psychosocial risk management codes of practice), require organisations to respond to reports of exposure to psychosocial hazards by applying a systematic WHS risk management process to identify, assess and control underlying causes of risks. This may require the conduct of an investigation from a WHS lens (a WHS investigation), which is distinct from a traditional employment or HR investigation, in both purpose and scope.
While an employment or HR investigation typically seeks to establish facts relevant to allegations, and determine whether a particular allegation is proven, the purpose of a WHS investigation is to assess the adequacy of existing risk controls and to identify any WHS risks that have not been eliminated or minimised, so far as is reasonably practicable. Whether an investigation is required, and which type(s) of investigation, will depend on the particular factual circumstances. For example, where an organisation receives an allegation of bullying, and there is a potential for disciplinary measures to be imposed, a WHS investigation may need to be run concurrently with a HR investigation.
A WHS investigation will examine whether current control measures are sufficient to address bullying risks at a systemic organisational level – not merely whether the alleged bullying is substantiated. Even where an allegation cannot be substantiated to the requisite standard of proof, a WHS investigation may still identify underlying risks that have not been adequately controlled, or for which there are more effective or reliable control measures available.
Furthermore, risk controls identified through a WHS investigation should be applied on an organisation wide basis – they are not limited to the specific facts or individuals involved in the particular complaint. This has also been borne out by recent regulator action which has required employers to implement organisation-wide changes to their investigation processes.
Organisations should also be aware that they may be required to produce investigation reports (whether HR or WHS related) to a WHS Regulator if these documents are not legally privileged and are relevant to the regulator’s investigation of a potential contravention of the WHS legislation.
Link to Re-thinking workplace investigations from a WHS lens Re-thinking workplace investigations from a WHS lens
Organisations that approach workplace investigations through a purely employment law lens, rather than also applying a WHS perspective, may risk significant legal exposure.
In a traditional employment law approach, an investigation often occurs in the context of adversarial processes, such as a complaint or allegation of misconduct, and is focused on establishing facts, testing evidence, and determining whether an allegation has been proven. By contrast, applying a WHS lens approaches workplace investigations as systems of work that must be designed and managed to control foreseeable psychosocial risks. The WHS lens does not require an allegation to be substantiated before controls are implemented, and requires PCBUs to respond to any safety concerns as they arise.
This shift in perspective does not displace core investigative principles, but it may require them to be applied differently in practice. For example:
- Adherence to procedures must allow for flexibility in response to risk
Investigation procedures are designed to promote fairness and consistency, however rigidly adhering to processes when participants are showing signs of distress or mental ill health can exacerbate psychological harm. Investigators should be empowered to adjust, suspend or modify investigation processes where necessary to mitigate risks to psychological health. The investigation process must also be underpinned by a risk assessment, which is reviewed on an ongoing basis. - Confidentiality must be balanced with system-wide risk management
While confidentiality remains a cornerstone of fair investigations, maintaining confidentiality does not mean total secrecy. A WHS-aligned approach preserves individual confidentiality while enabling the identification and internal reporting of systemic risk factors on an anonymised basis, supporting organisation-wide risk control. An approach that requires total secrecy can limit the internal reporting of incidents and prevent organisations from identifying broader psychosocial hazards (both of which are legal obligations). - Risk management operating in parallel with fact-finding
A key distinction of the WHS lens is that managing psychosocial risk is not contingent on proving misconduct. Organisations should ensure that WHS investigations occur concurrently (rather than after) any misconduct investigation, so that potential harm is mitigated promptly regardless of whether the underlying allegations are ultimately substantiated. - Thoroughness must not come at the expense of timely risk control
Although investigators are expected to carefully assess the available evidence before reaching findings, a WHS lens obliges organisations to act on foreseeable risks as they arise. This can be achieved by promptly implementing risk controls while an investigation is ongoing, rather than deferring action until conclusions are reached. - Adversarial and legalistic language should be avoided
While employment investigations often occur within the context of a complainant/alleged perpetrator and potential disciplinary context, overly legalistic or adversarial communications can exacerbate distress. A WHS lens involves clear and respectful communications which demonstrate genuine care for all the participants, adopts a trauma informed approach , and avoids language that may cause psychological harm. - Non-adversarial context of a WHS investigation
The unfortunate reality is that employment related investigations may be conducted against a backdrop of allegations, complaints, and interpersonal or political disputes within an organisation. This may detract significantly from the credibility of the investigation, the trust in the organisation and raises significant psychosocial organisational justice risks. By contrast the focus in a WHS investigation is not on the conduct of the opposing individuals, but on organisational health and safety risks, and mitigation measures.
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As WHS regulators continue to scrutinise investigation processes, organisations must ensure their processes reflect a genuine commitment to psychological safety. If you would like to explore how your organisation can implement this approach, please contact our team.