When Workplace Investigations Become the Hazard
A recent NSW case makes it clear: workplace investigations themselves can be a psychosocial risk — and regulators are paying attention.
Written by Sue Chennell | Shared Safety and Risk | April 2026
What Happened?
A significant decision handed down by the NSW Industrial Relations Commission earlier this year has put workplace investigation processes firmly in the spotlight. The case — Secretary, NSW Department of Education v SafeWork NSW (No 2) [2026] — is a useful reminder that your duty to protect psychological health doesn’t pause when a misconduct process begins. In fact, that’s often when it matters most.
A long-serving Department of Education employee — someone who had worked at the same school for around 14 years — was called in and told she was under misconduct investigation. She was directed to leave her workplace immediately and report to a different location, performing duties well below her normal role. She wasn’t told what the allegations were beyond a vague reference to her interactions with colleagues over several years.
Shortly after, she attempted suicide.
The investigation dragged on for nearly a year and regular updated were minimal. In November 2023, the employee complained to SafeWork NSW alleging exposure to psychosocial hazards due to the length of the investigation. SafeWork NSW investigated and found that the delays, the lack of communication, and the demotion to lower-grade duties at a different workplace had contributed to serious harm to her mental health.
Two improvement notices were issued in February 2024. The Department challenged both. The Commission largely rejected that challenge.
What the Commission Decided
The Commission upheld both notices, finding that the Department’s investigation systems had real gaps — not just in this case, but as a matter of systemic design.
The first notice addressed how investigations are managed over time. The Department had a general guideline suggesting uncomplicated matters should wrap up within three months — but no actual mechanism to enforce that or flag when things were blowing out. A guideline without a safeguard isn’t a control.
The second notice addressed the allocation of alternative duties. The Department was making those decisions unilaterally, without clear criteria, without considering the psychosocial impact of removing someone from their role and colleagues, and without guidance on what “suitable” really means in practice. Being given little or no meaningful work, or work far below your normal level, creates its own hazards — role underload, loss of identity, ambiguity.
One part of the first notice was set aside — the requirement for formal, regular communication updates — because the Inspector herself had acknowledged in evidence that the Department’s existing communication system was not inherently flawed, just not applied in this case.
A Few Things Worth Noting for Your Own Organisation
The psychosocial regulations don’t add new duties — they clarify ones you already had. The obligation to protect psychological health under the WHS Act has always extended to how work is designed and managed, including investigation processes. The regulations simply make that explicit.
One person’s experience can expose a systemic gap. The fact that only one worker was directly affected didn’t prevent the notices from applying across all of the Department’s workplaces. If the risk exists in your system, it exists everywhere that system operates.
Different people respond differently — but that doesn’t reduce your obligation. Some workers will navigate an investigation without significant harm. Others won’t. Your duty is to manage the hazard, not to wait and see who copes.
Policies on paper aren’t enough. The Department had WHS risk management procedures. They weren’t consistently applied. What regulators look at is what actually happens in practice — not what the document says.
The Practical Questions to Ask
If someone in your organisation is subject to a misconduct or performance investigation right now, ask yourself:
Do they know roughly how long the process will take?
Are they receiving regular, documented communication about where things are at?
If they’ve been moved to alternative duties, were those duties assessed for psychosocial suitability — not just operational convenience?
Is there a trigger point in your system that flags when an investigation is running too long?
Are those performing investigation trained to recognise and respond to signs of psychological distress?
Bottom line
Running a fair process isn’t just an HR or legal obligation — it’s a WHS one. The way your organisation conducts investigations, communicates with the person under review, and manages their duties during that time is part of your psychosocial hazard control framework. If you haven’t looked at it through that lens yet, now is a good time to start.
If you’d like to talk through how your investigation processes stack up against your psychosocial risk obligations, we’d love to help. Reach out at info@sharedsafetyandrisk.com.au.
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At Shared Safety and Risk, we work alongside WHS, HR and risk teams to translate complex regulatory developments into practical, people-centred action.
Whether you need support reviewing your current chemical exposure arrangements, updating your exposure assessment processes, preparing for the December 2026 WEL transition, or building a more integrated approach to hazardous substances management — we can help.
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