In late 2025, the New South Wales Local Court (Court) convicted the Department of Defence (Department) for a breach of its primary duty of care under the Work Health and Safety Act 2011 (Cth) (WHS Act).
Need to know:
- This is the first time a Commonwealth employer has been found guilty for failing to take reasonably practicable measures to eliminate or minimise psychosocial risks in a workplace.
- The Department admitted it breached its primary health and safety duty by failing to provide training for supervisors involved in the use of a performance management tool.
- Managing psychosocial risks requires a systematic and considered risk management approach tailored to your organisation and the relevant risks identified. Simply relying on policies and procedures as controls is insufficient to eliminate or mitigate psychosocial risks in the workplace.
- Undertaking performance management processes with a WHS lens requires proactive implementation training for leaders and those administering the relevant process. It also requires ongoing monitoring and verification to ensure the processes are applied and followed in practice to reduce any consequential psychosocial risks or hazards that might arise as a result.
This conviction comes after the Department pleaded guilty to a single charge under section 33 of the WHS Act following the death of a worker with the Royal Australian Air Force (RAAF) while he was on duty at Williamtown.
The Court fined the Department $188,000 and ordered an adverse publicity order under section 236 of the WHS Act (the details of which are still to be determined).
The Department admitted it breached its primary health and safety duty by failing to provide training for supervisors involved in the use of a performance management tool.
Background
In July 2020, Comcare began an investigation following the death of a technician with the RAAF while he was on duty at Williamtown.
In its investigation, Comcare determined that in the months prior to his death, the worker had displayed increasing signs of distress and ill-health during a performance management process, where he had been subject to four separate Work Plans over a six-month period. Comcare found that during this process the worker’s supervisors did not offer him support, did not place him on leave, nor did they take other steps to relieve the stress and pressure he clearly felt, despite knowing that he was not coping.
In 2022, the Department was charged with three offences under the WHS Act: one under section 32 (Category 2) and two under section 33 (Category 3).
At the time, Comcare alleged that the Department had breached its primary duty of care under section 19(1) of the WHS Act by failing to provide, so far as reasonably practicable:
- safe systems of work;
- necessary training to workers; and
- information necessary to protect all persons from risks to their health and safety.
All three charges related to alleged failures in managing risks to psychological health and safety during the administration of the Department’s performance management policies and procedures.
It is noted that the Department was convicted of a single Category 3 offence (which requires proof of breach of the primary duty by the existence of a risk to health and safety to a worker). This is a reduction from the original three charges filed in 2022, with one of those being a more serious, Category 2 offence (which has a further element requiring exposure to a risk of death or serious injury).
The fine imposed by the Court on the Department is in the mid-range. The maximum penalty available to the Court for a Category 3 offence under the WHS Act was $500,000.
Psychosocial risks as serious and foreseeable
In bringing charges against the Department, Comcare alleged that the psychosocial risks associated with the performance management of the worker were serious and foreseeable to the Department through its existing policies and guidelines.
Comcare further alleged that the Department failed in proactively controlling these known and obvious risks and asserted that “policies can only ever mitigate risks if they are applied and followed in practice, and if they are supported by training those responsible for implementing them”. Therefore, the risk controls available to the Department prior to the worker’s death included training supervisors about:
- understanding how a worker being on a Work Plan in the context of managing their performance may be a psychosocial hazard (particularly when it relates to underperformance)
- identifying psychosocial risks that may be caused by workers having their performance managed through Work Plans
- eliminating or minimising psychosocial risks arising from Work Plans, including processes about when to refer a worker for a medical assessment and when to suspend a performance management process.
Practical takeaways for psychosocial risks
When undertaking performance management processes, organisations should consider any associated psychosocial risks and hazards that might arise in particular circumstances and give due consideration to appropriate controls and verification measures once risks are identified.
Once implemented, organisations must continue to monitor and assess the effectiveness of the translation and implementation of controls and verification measures within their workplaces.
As highlighted in this case, when controls are embedded within policies and procedures, it is critical that leaders and workers who need to use them are appropriately trained on their practical application, and also, that there is a means of monitoring ongoing compliance with the process.
On top of the legal requirements to manage psychosocial risks, promoting mental health and wellbeing should be a key focus for all organisations and requires a considered and tailored risk management approach.
The conviction of the Department is a significant step in regulatory action for failures by PCBUs to manage psychosocial risks in their workplaces, particularly in the context of non-compliance with internal processes and procedures.
