Do Employers Owe a Duty of Care During Disciplinary or Investigatory Processes?

The recent Supreme Court of Queensland case of Govier v Unitingcare Community [2017] QCA 12 addresses two primary issues in relation to holding employers responsible for psychiatric injuries sustained by employees in the workplace. This article will focus primarily on whether an employer’s duty of care extends to an employee during disciplinary or investigatory periods. This was one of two central issues in Govier.

Read the full details of the case here.


There were two central enquiries in Govier. Namely:

  1. Did the respondent breach its duty of care to provide a safe environment for Ms Govier by rostering Ms Govier and MD so that they met on the same shift? For the outcome of this issue, please click here; and
  2. Did the respondent employer breach a duty of care owed to Ms Govier by the sending of the two letters. Did the defendant owe a duty of care in this instance?

The decision

The Supreme Court of Queensland held that while it could be determined that the respondent’s conduct would have breached a duty of care, the relevant duty of care did not exist between the respondent employer at the time the letters were sent, namely during the investigatory process which was outside Ms Govier’s scope of work. To establish a duty of care would be to expand the law of torts to include a new novel category of duty of care. The Court was not willing to establish this.


The Supreme Court of Queensland accepted the primary judge’s decision that Ms Govier’s case comprehended: an obligation to supply a safe system of investigation and decision making in relation to matters concerning the contract of employment itself.

The Court rejected that employers have such an obligation, or owe such a duty of care to ensure a safe system of investigation or decision making.

Essentially, the Supreme Court reasoned that investigatory and disciplinary matters are governed by the employment contract and contract law and administrative law (in relation to creation and termination of an employee’s contract). This is distinct from tort law which already governs performance under the contract (the duty of care the employers owes to the employee while that employee is ‘working’). To expand an employer’s duty of care to provide a safe system of disciplinary proceedings or investigations could potentially distort the balance of conflicting interests.

Therefore, while the Court reasoned that respondent would have breached a duty of care by sending the letters (which caused further psychiatric injury to Ms Govier), in the Court’s opinion, no duty of care could be established in the circumstances in which Ms Govier received the letters. That is, in the investigatory process.

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