It’s fairly safe to say that employers have a duty to provide a safe system of work for their employees. But how far does this duty extend? Do employers need to uphold their duty of care during disciplinary procedures such as workplace investigations and performance management reviews? Are they responsible for employees’ mental health or do they need to ensure employees aren’t offended?

Since 2002, it has been accepted that an employer’s duty of care does not extend to disciplinary procedures which lead to termination of employment. This came from a decision by the NSW Court of Appeal against a school principal, Peter Paige, who allegedly suffered psychiatric harm because of the way the Department of Education had terminated his employment. The court’s reason was that it would be inconsistent with other pre-existing statutory schemes and would also prevent employers to carry out investigations and make termination decisions in an efficient manner. This meant that for employers, the law would not impose further restrictions on how they could manage their employment issues.


The recent decision

The recent decision by the High Court relates to a case involving an employee of UnitingCare Community who was allegedly attacked and beaten by another co-worker. The company conducted an investigation and requested the alleged victim to attend interviews, which she was unable to attend due to sickness. The company claimed that she had engaged in violent and inappropriate behaviour and that her employment would be terminated within five days unless she could show cause as to why it shouldn’t. The employee then started legal proceedings claiming that the timing, manner and content of UnitingCare’s letters caused her to suffer a chronic post-traumatic stress disorder and a major depressive order.

She was unsuccessful in both Queensland’s District Court and Court of Appeal, with both courts rejecting her submissions that UnitingCare owed her a duty of care beyond the conduct of the tasks for which she was employed.


This decision, consistent with the 2002 Paige case, meant that there was no duty to provide a safe system of work in the UnitingCare’s investigation and decision making processes.

The case was appealed to the High Court and on April 13 2018, was dismissed after 46 minutes of hearing the claims. The defendant did not put forward her employment agreement as evidence, which the High Court deemed central to the issues in question.


What it means for employers

Therefore, the rule from the Paige case remains, until another case comes before the High Court to determine the issue again. But what do all these decisions mean for employers?


  1. Employers will not be held liable for damages arising from the way they conduct investigations or termination decisions. However, they should still consider employees’ mental health during these proceedings.


  1. Employers should consider including sections in their employment agreements requiring employees to cooperate and participate in any workplace investigations and disciplinary proceedings which they are involved in. This will create a contractual obligation for employees to assist employers in carrying out their disciplinary processes.


  1. Employers should review their disciplinary policies and procedures to ensure they are up to date and that their employees are always given procedural fairness. Staff conducting investigations and making termination decisions should be aware of these policies and procedures.


For advice regarding disciplinary procedures, please contact us on (08) 9316 9896 or


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