We explore the recent case of Secretary, NSW Department of Education v SafeWork NSW (No 2) [2026] NSWIRComm 1014, which sheds light into how an employer’s system of work when conducting workplace investigations can be challenged due to the risks of exposure to psychosocial hazards and risks.
Overview
The Secretary of the New South Wales Department of Education (Department) sought an external review under section 229 of the Work Health and Safety Act 2011 (NSW) (WHS Act) of two improvement notices (Notices) issued by a SafeWork NSW Inspector (Inspector) on 6 February 2024, with the Department arguing that the Notices should be revoked or set aside. The Commission largely rejected the Department’s challenge, upholding both Notices with one limited variation. This case highlights the necessity for employers to treat their investigation management processes and systems as a component of their psychosocial hazard control framework.
Background
On 4 April 2023, a Department employee was informed that she was the subject of a misconduct investigation and directed to immediately vacate her usual workplace, where she had worked for approximately 14 years, to perform alternative duties at a different location. The Department provided no particulars of the allegations beyond a general reference to her interactions with multiple staff members over several years. After returning home, the employee attempted suicide which was fortunately unsuccessful.
On 10 April 2023, the employee requested a review of the decision. Despite this, a letter of allegations was not issued until 5 July 2023, to which she provided a response. As the investigation continued, the employee was placed on alternative duties.
In November 2023, the employee complained to SafeWork NSW alleging exposure to psychosocial hazards due to the length of the investigation. SafeWork found that her mental health deteriorated because of extensive delays in finalising the investigation, lack of communication from the Department during the investigation, and her allocation of lower administrative duties at a different location.
On 6 February 2024, the Inspector issued the Department with the Notices both relating to alleged contraventions of section 19 of the WHS Act and clause 55C of the Work Health and Safety Regulations 2017 (NSW) (WHS Regulations) which relates to the management of psychosocial risks.
The Department ultimately concluded its disciplinary investigation and informed the employee of the outcome on 23 March 2024.
The improvement notices
First Notice – conducting investigations
The Inspector issued the First Notice on the basis that workers may be exposed to psychosocial hazards due to the Department’s inadequate system of work for managing conduct and performance, specifically because:
- it did not ensure investigations regarding misconduct and performance of workers were completed in a timely and expeditious manner; and
- it did not have a process and prescribed timeframes to provide formal, regular and documented updates on the progress of investigations to workers while an investigation was underway.
The First Notice directed the Department to ensure, so far as is reasonably practicable, the psychological health and safety of workers by reviewing, implementing and maintaining a safe system of work, including:
1a) providing workers at the commencement of an investigation with an estimated timeline and timeframe for completion;
1b) providing workers with formal, regular and documented communication regarding the progress of an investigation while underway;
2) consulting workers in the development of the system of work;
3) reviewing and as necessary revising the system of work to ensure it remains effective; and
4) providing information, training and instruction to workers on the system once implemented.
Second Notice – provision of alternative duties
The Second Notice was issued on the basis that the Department’s system of work exposed workers to psychosocial hazards by allocating alternative duties during an investigation that were not commensurate with their prior position, duties, and functions, thereby exposing those workers to further psychosocial risks. The Second Notice directed the Department to review, implement, and maintain a safe system of work to address this issue, with additional requirements for worker consultation, system review, and the provision of information, training, and instruction.
The Department challenged both Notices through SafeWork NSW’s internal review process, however the Internal Review Unit affirmed the Notices in March 2024. The Department escalated the matter to the Industrial Relations Commission and successfully obtained a stay of both Notices pending external review.
The Department’s grounds of challenge
The Department advanced three grounds to set aside the Notices:
- the Notices were invalid as the Inspector misconstrued the operative provisions under the WHS Regulations with respect to psychosocial hazards and risks;
- the Notices were invalid as the Inspector could not have formed the requisite reasonable belief; and
- in the alternative to grounds 1 or 2, the measures in the Notices were not reasonably practicable for the Department to implement.
Ground one – psychosocial regulations misconstrued
The Department argued that the Inspector’s interpretation of psychosocial hazards and risks was flawed, contending that clauses 55A-55D of the WHS Regulations were unclear as to the meaning of ‘psychosocial hazard’ and ‘psychological harm’ and that the NSW and Commonwealth Codes of Practice provided inconsistent definitions of psychosocial injury, making it impossible for a PCBU to comply with its duties under sections 18 and 19 of the WHS Act regarding psychosocial risks. The Department further argued that the Inspector had wrongly treated one employee’s subjective experience as evidence of a systemic workplace hazard without identifying any objectively foreseeable risk.
The Commissioner agreed with SafeWork’s submissions on the approach and application of the obligations under sections 18 and 19 of the WHS Act in relation to clauses 55A-55D of the Regulations. As submitted by SafeWork (and accepted by the Commission), clauses 55A-55D of the WHS Regulations do not create new, standalone duties. Rather, they explain a PCBU’s existing primary duty of care under section 19 to ensure psychological health so far as is reasonably practicable. PCBU’s already had a primary duty of care to have adequate processes, procedures and support in place for employees subject to workplace investigations.
The Commissioner also rejected the Department’s contention that there could never be a basis for finding that a PCBU has contravened the WHS Act and the WHS Regulations regarding psychosocial hazards, because it is impossible to interpret how the relevant clauses of the WHS Regulations interact with the WHS Act – an outcome that would be contrary to the objects of the WHS Act. The Commissioner referred to two disciplinary investigation cases considering clauses 55A–55D, noting that in neither case did the decision maker encounter any difficulty interpreting those provisions.
The Commissioner confirmed that the NSW Code of Practice makes clear that differences in how employees perceive and respond to the same psychosocial hazard do not excuse a PCBU from its obligations to identify, assess, and respond to those hazards. While the impact of a psychosocial hazard may have a different effect on different people, the duty to minimise the risk to the psychosocial hazard remains regardless. Accordingly, Ground one did not provide a basis for setting aside the Notices.
Ground two –lack of requisite reasonable belief
In relation to Ground 2, the Department argued that the Inspector had not formed the ‘reasonable belief’ required under section 191 of the WHS Act to justify issuing the Notices. During cross-examination, the Inspector was asked whether the Department’s system of providing regular updates to employees, at least once per school term, was adequate to meet its WHS obligations. The Inspector answered ‘yes’ and confirmed that she did not consider the system itself to be deficient but rather, it simply had not been followed in this particular case.
The Commissioner found that, with one exception, there was a reasonable basis for the Inspector to issue the Notices. This was because the Department’s system for investigation timeframes merely provided a three-month guideline without any further safeguards, having permitted the employees investigation to drag on for ten months. It’s system for allocating alternative duties also lacked safeguards against psychosocial risks, with decisions made unilaterally by the Department and without guidance on timing or the factors to be considered.
The one exception arose directly from the Inspector’s cross-examination evidence. Because she had stated that the regular reporting system was not itself deficient, the Commissioner found that part of the First Notice (paragraph b of the contravention description and direction 1b), requiring formal and regular communication updates, had been issued without proper authority and was set aside.
Ground three – measures not reasonably practicable
The Department argued it was not reasonably practicable to implement the measures directed in the Notices, as it was practically impossible to establish a system providing for formalised regular communication regarding the progress of an investigation. However, the Commission noted that most of the Department’s evidence indicated that the measures in the Notices were already substantially in place and being implemented. The specific concern about formalised regular communication related to the part of the First Notice that had already been set aside.
The Commissioner also rejected the Department’s argument that consulting with individual employees was impractical given its workforce of over one million people. He clarified that the consultation obligations under sections 47 and 48 of the WHS Act do not require consultation with all individual employees, particularly in the context of a large organisation. Accordingly, Ground three was also rejected.
Conclusion
The Commission made orders varying the First Notice by removing the contravention description in paragraph b, and the corresponding direction in paragraph 1b relating to regular progress updates, and set aside the stay of the Notices, with the result that both Notices as varied took immediate effect.
Key takeaways for employers
- Psychosocial provisions explain existing duties rather than create new ones: Clauses 55A-55D of the WHS Regulations do not introduce new standalone duties on employers. They explain the primary duty of care that already exists under section 19 of the WHS Act to ensure the psychological health of workers so far as is reasonably practicable.
- Individual reactions to a hazard do not diminish an employer’s obligations: Employees may respond differently to the same psychosocial hazard, but that variability does not excuse a PCBU from its duty to identify, assess, and respond to the hazard.
- A non-binding aspirational timeframe is not enough – investigations must have active safeguards: A guideline recommending that uncomplicated matters be concluded within three months, without further mechanisms to enforce or monitor compliance, is insufficient. Employers must have active controls such as escalation triggers and monitoring protocols to ensure investigations are progressed and concluded in a timely and expeditious manner.
- A single case can ground a systemic improvement notice directed at all workplaces: The fact that the investigation that gave rise to the Notices was limited to one workplace did not prevent the Notices from applying across the entirety of the Department’s workplaces. Improvement notices target a general class of risk rather than a specific incident, and it is sufficient that the risk is one which the PCBU should reasonably have foreseen.
- Alternative duties must be positively assessed for psychosocial suitability: A system for allocating alternative duties that is based on a unilateral employer decision, without guidance on timing or the factors to be considered, is inadequate. Alternative duties that exceed an employee’s normal role, leave the employee with little or no work to do and are menial in nature give rise to further psychosocial risks, including role underload and role conflict or lack of role clarity.
- Existing policies must be applied in practice: Documented policies do not discharge WHS obligations if they are not consistently applied, as demonstrated by the Notices being substantially upheld despite the Department’s existing WHS Risk Management Procedure and Guidelines. Risk assessments must also account for the psychosocial impact of investigation processes on subjects including duration, communication gaps, role changes, and workplace isolation.
Please reach out to our Workplace and Safety team if you would like to know more.
