Coming for HR – when the investigation is the hazard

Secretary, New South Wales Department of Education v SafeWork NSW (No 2) [2026] NSWIRComm 1014

Investigations are stressful – for everyone involved. So it’s no surprise the NSW Industrial Relations Commission has held that there are inherent psychosocial risks involved in the investigation process.

In a recent decision affirming the validity of two improvement notices issued to the Department of Education by SafeWork NSW, the Commission reminds employers of their duty to identify and mitigate those risks, and the consequences when they don’t.

Background

On 4 April 2023, A, an employee who had been employed with the Department for 14 years was notified that she was the subject of a misconduct investigation by the Professional and Ethical Standards Committee. A was not provided with the details of the allegations and was directed to perform alternative duties at another location. Shortly after receiving this information, she attempted suicide.

On 10 April 2023, she requested a review of the decision to place her on alternative duties.

Between April and November 2023, the investigation continued.

Around November 2023, A complained to SafeWork NSW alleging exposure to psychosocial hazards in the workplace due to the length of the investigation. A SafeWork inspector commenced an investigation. On 6 February 2024, the inspector issued the Department with the First Notice and the Second Notice.

The First Notice concerned the timeliness of investigations and the lack of structured communication with employees. The inspector considered that the Department’s system of work contravened the Work Health and Safety Act 2011 (NSW) (Act) and the Work Health and Safety Regulation 2025 (NSW) (Regulations) and did not ensure investigations were conducted in a timely manner, nor did it provide for regular, formal and documented updates. The First Notice required the Department to provide employees with an estimated timeframe at the start of an investigation and to maintain ongoing communication about its progress.

The Second Notice addressed the allocation of alternative duties during investigations. In the case at hand, the employee had been assigned to lower-level administrative work. The inspector found this created a psychosocial risk and required that employees be placed in duties commensurate with their role while the investigation was ongoing.

The Department sought an internal review of the First Notice and Second Notice. When the Internal Review Unit of SafeWork affirmed the notices, the Department made an application for external review.

Outcome of the external review

The Department advanced three grounds for the Commission to set aside the First Notice and Second Notice:

1. The Inspector misconstrued the operative provisions under the Regulation with respect to psychosocial hazards and risks (Ground 1);

2. The Inspector could not have formed the requisite reasonable belief (Ground 2); and

3. In the alternative to Ground 1 and Ground 2, the measures were not reasonably practicable for it to implement (Ground 3).

The Commission affirmed the internal review (with one exception) and found that the issuing of the First Notice and Second Notice was the ‘correct and preferable’ decision.

Ground 1 – Are the Regulations capable of interpretation?

The Department argued that the legislative framework for psychosocial hazards was too uncertain to apply, pointing to alleged inconsistencies in definitions of ‘psychosocial hazard’ and ‘psychological harm’ in the Regulations. It also contended the inspector improperly relied on the employee’s subjective experience as evidence of a systemic hazard without identifying any objective, foreseeable risk, rendering the notices invalid.

The Commission rejected the first ground. It held that the primary duty under section 19 of the Act clearly extends to psychosocial risks defined in the Regulations. It clarified that the Regulations inform how that duty is to be met, rather than creating separate obligations and that it relied on prior authority confirming there was no difficulty in applying the relevant provisions.

The Commission further held that while there may be individual differences in how people perceive and respond to psychosocial hazards, there are objective hazards inherent to workplace investigations that the Department is obliged to identify and address.

Ground 2 – Did the inspector reasonably believe the contraventions had occurred or were occurring at the time of issuing the Notices?

To issue an improvement notice, an inspector must reasonably believe that a person is contravening, or has contravened in circumstances that make a further contravention likely. The Department argued that the inspector did not have this belief. The Department also argued that the inspector didn’t have sufficient evidence to identify contraventions in relation to multiple workers as the evidence only related to a particular worker.

The information before the inspector was that the Department had a policy in place which included a guideline that “uncomplicated matters” be concluded within 3 months of receiving the allegation. However, there were no safeguards to ensure the timely conclusion of investigations which as the Commission observed, allowed the investigation “to drag on for 10 months”. Similarly, the guideline for the allocation of alternative duties merely stated that they were a “protective measure”, “not a disciplinary outcome” and an employee “will be invited to request a reconsideration of the action taken”. The Commission observed that the “one sided” system is predicated on a decision made by employees, without sufficient safeguards to ensure duties are commensurate.

The Commission held that the information before the inspector provided a proper basis for the requisite belief to issue the Notices with one exception. One aspect of the First Notice was set aside after the inspector conceded in cross‑examination that existing guidelines requiring written updates to workers subject to investigations at least once per school term were sufficient to meet the Act’s requirements. The contravention and direction relating to providing formal, regular and documented updates in the First Notice was set aside.

Ground 3 – Was it reasonably practicable to implement the Notices?

The Department argued that the directions outlined in the Notices weren’t reasonably practicable to implement. One of the arguments advanced was that the direction in the Notices for the Department to ensure workers are consulted in the development of the system of work was not feasible given the Department has WHS-related duties in relation to more than 1 million people.

In rejecting Ground 3, the Commission observed that the measures in the notices are “in substance, already in place and being implemented.”  Regarding the consultation obligations, the Commission clarified that read in context, they do not require consultation with all employees, particularly in very large organisations.

Key takeaways

1. Psychosocial hazards are inherent to investigations: The case is a reminder that any workplace investigation necessarily involves psychosocial hazards which employers have a primary duty to identify and address. This includes the timeliness of the investigation, the manner it occurs, and the provision of alternative duties during the investigation.

2. Policies should not be aspirational: The Department had guidelines in place but there weren’t active safeguards to ensure that the guidelines were followed. It’s not enough to say, “we’ll try to get this done as quickly as possible”. Policies should articulate the proactive, specific measures that will be implemented to ensure timeliness is maintained. 

3. People react differently, but your obligations remain the same: Just because individuals perceive and respond differently to the same psychosocial hazards, it doesn’t excuse employers from their obligations to identify and address hazards.

4. The scope of the incident doesn’t define the scope of the improvement notice: Even if a SafeWork inspector investigates one workplace investigation involving one worker at one worksite, the improvement notice can apply to all of the worksites of the employer, provided the inspector can identify a ‘general class of risk’. 

If your organisation is reviewing its workplace investigation processes or considering how psychosocial risks are managed in practice, our team can help you work through the key issues and next steps.

Authors: Linda Mackinlay, Alix Parnell & Alyssa Conejar

This publication is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.