When investigating allegations of workplace bullying, do employers owe a duty of care to provide support to those employees involved in the investigations? This was the issue before the Queensland Court of Appeal in the case of Hayes v State of Queensland.
Samantha Hayes, Pamela Greenlagh, Tanya Palmer and Edith Harris (“the appellants”) were employed by the Maryborough office of Disability Services Queensland (“the respondents”) as residential care officers. Their role was to provide around the clock service to persons living with significant intellectual disabilities.
In July 2008, complaints involving workplace harassment were made against Ms Hayes by a fellow team leader. The respondent investigated the allegations and later found them to be unsubstantiated. By January 2009, the Maryborough office had become a troubled workplace after more serious allegations of bullying were made against all of the appellants. These further complaints were also found to be unsubstantiated.
The appellants commenced proceedings alleging the respondent owed duty of care to provide them with sufficient support whilst the investigations were undertaken. Further it was a breach of this duty that caused them to suffer psychiatric injury.
At first instance the primary judge held that the respondent did not owe the appellants such a duty of care.
Issues on appeal
- Whether the primary judge erred in finding that the respondent did not owe such a duty?
- If yes – did the respondent breach that duty
- If yes – did the breach of duty cause the psychiatric injuries to be sustained by the appellants?
Decision on appeal
Duty of care
The Court of Appeal held that the respondent owed 3 of the 4 appellants such a duty of care. The Court reiterated the finding in Koehler v Cerebros (Australia) Ltd that there is ‘no doubt that in appropriate circumstances an employer will owe a duty of care to take reasonable steps to prevent psychiatric injury to an employee.’ An appropriate circumstance is one where the risk of sustaining a psychiatric injury is reasonably foreseeable and not far-fetched or fanciful. In this case, the appellants were vulnerable in the hostile workplace whilst their conduct was being investigated . Thus the risk of the appellants sustaining psychiatric injuries was reasonably foreseeable.
Breach of duty
In relation to the duty owed to the 3 employees, the Court held that the respondent had breached this duty. The Court noted that multiple complaints had been made at the Maryborough office and that the respondent was aware that the hostile work environment was the product of these complaints. The only support given to employees was a free counselling service. Some employees who had allegations made against them had to continue working with complainants and others were subject to unreasonable isolation and segregation. In light of this, the respondent had the ability to foresee the risk of harm occurring and the inadequacy of the support provided amounted to a breach of the duty owed.
The three appellants’ case however came undone when they were unable to prove that it was this breach that caused their psychiatric injuries. The Court found that inadequate support was not the only factor relevant to the cause of the injuries. Rather it was a ‘combined effect of matters’ which resulted in the appellants developing psychiatric injuries. As a result there was insufficient evidence permitting an inference that the inadequate support provided had caused the injuries.
Thus the appellants were unable to establish that a breach had caused their injuries and the appeal was dismissed.
The 4th appellant
Unlike the other appellants, Ms Greenhalgh was moved to a different role during the period of investigations which ‘somewhat insulated’ her from the hostile work environment that the other appellants experienced. On this basis the Court found that the respondent did not owe her the duty of care it owed the others.
Take home – Duty of Care
Employers are reminded that in appropriate circumstances they owe a duty of care to take reasonable steps to prevent psychiatric injury to an employee. As was the situation in this case, this may extend to a duty to provide support to employees during an investigation. This duty is particularly prevalent where the effects of the investigations, like a hostile work environment, give rise to a reasonably foreseeable risk of harm occurring. Employers should also remember that support must be provided to both the complainant and the employee facing the allegations. In addition, employers should make aware to employees the support that is available to them. It may even be wise to take proactive steps to ensuring that adequate support structures are in place in the unfortunate event that a complaint needs to be investigated.
  QCA 191.
  HCA 15.