Can an employer’s failure to effectively manage an employee’s alternative duties when under investigation be considered a breach of WHS obligations?

Yes, according to NSWIRC (decision) where it confirmed that poor investigation processes and ill‑considered alternative duties can themselves breach WHS duties and expose workers to serious psychosocial harm.

The facts showed a number of problematic issues with the employer’s investigation. The worker was removed from her workplace, assigned alternative duties without clarity or substance and left uninformed about the specific allegations against her whilst the investigation dragged on. All the while there was a significant deterioration in the employee’s mental health.

Our Take

This decision squarely reinforces that psychosocial risk obligations are not optional, unclear or impossible to meet, even under relatively new regulatory provisions. Further than that – they clearly extend to investigations and accordingly investigations require the same approach as is required in any other potentially hazardous employment process.

Of particular significance is the Commission’s acceptance that “underload” can itself be a psychosocial hazard. Assigning duties that are supernumerary, menial or disconnected from a worker’s role may expose them to harm through loss of purpose, role ambiguity and isolation.

For employers, this case emphasises that investigation processes are not neutral administrative exercises — they are systems of work that must be designed and managed to minimise psychological risk.

Action Steps

• Treat investigations as WHS risks - particularly where workers are removed from their usual role or workplace. Look for alternatives the same way you approach flexible work requests.

• Complete investigations promptly - with safeguards to prevent open‑ended delay. Where delays happen get on the front foot and explain them. Over consultation is better than under.

• Provide clear information - including the nature of allegations, unless there is a compelling reason not to do so. There should be no ‘smoking guns’ – these are best reserved for TV programs. Be up front. The investigation is to provide an answer– not entrap people with some cunning plan.

• Avoid role underload - ensuring alternative duties are meaningful, time‑bound and appropriate to the worker’s skills and status. Low demands are not the ‘lesser’ in terms of psychosocial hazards. Apply the same levels of rigour to both.

• Maintain role clarity and dignity - particularly where workers are working alongside colleagues aware of the investigation.

• Do not rely on uncertainty arguments - as regulators and tribunals expect reasonable, practical risk controls.

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