Disclaimer: This article contains material that may be distressing or sensitive for some readers. 

In Secretary, NSW Department of Education v SafeWork NSW (No 2) [2026] NSWIRComm 1014, the NSW Industrial Relations Commission upheld two improvement notices issued against the Department of Education after finding that its workplace investigation exposed a long‑serving employee to psychosocial risks.  

While the investigation was being conducted, the respondent employee was instructed to undertake alternative duties at a different workplace and was not provided with sufficient particulars of the allegations prior to making a complaint to SafeWork NSW approximately seven months later.  

The employee was a Business Manager at a NSW Department of Education (Department) school and had been employed for approximately 14 years. On 4 April 2023, she received correspondence from the Department’s Professional and Ethical Standards Directorate advising that she was the subject of a misconduct investigation. 

She was directed to immediately leave her workplace and report to a different workplace to perform alternate duties. At that stage, no particulars of the alleged misconduct were provided. Shortly after receiving the correspondence, the Business Manager attempted to commit suicide. 

A formal letter of allegations was not issued until 5 July 2023, some three months after the Business Manager had first been advised of the investigation and redeployed. The investigation continued, with limited information provided to the Business Manager about its progress. 

In November 2023, the Business Manager made a complaint to SafeWork NSW, raising concerns about the length of the investigation, the lack of communication and the nature of the alternative duties to which she had been assigned.  

SafeWork NSW issued two improvement notices on 6 February 2024. 

On 23 March 2024, almost 12 months after the investigation had commenced and more than six weeks after SafeWork NSW had issued the improvement notices, the Department advised the Business Manager that all allegations of misconduct had been substantiated and that she would be issued with a caution and reprimand. 

The first notice alleged contraventions of section 19 of the Work Health and Safety Act 2011 (NSW) (WHS Act) and regulation 55C of the Work Health and Safety Regulation 2017 (NSW) (WHS Regulation) (First Notice) and provided as follows: 

"Workers may be exposed to a risk to their health or safety from psychosocial hazards in the workplace due to the [Person Conducting a Business or Undertaking’s (PCBU’S)] current system of work for the management of conduct and performance being inadequate as: 

a) It does not ensure investigations regarding misconduct and performance of workers is completed in a timely and expeditious manner. 

b) It does not have a process and prescribed timeframes to provide formal, regular and documented updates on the progress of an investigation into misconduct and performance to workers while an investigation is underway." (emphasis added) 

Relevantly, the First Notice also provided the following directions to the Department for the purposes of compliance: 

"You must ensure, so far as is reasonably practicable, the psychological health and safety of workers by reviewing, implementing and maintaining a safe system of work which minimises the impact of the psychological risks to the health and safety of workers while an investigation into misconduct and performance is being undertaken by: 

1.       a. Providing workers, at the commencement of an investigation,
              with an estimated timeline and timeframe for the completion of the
              investigation which ensures a timely and expeditious investigation
             process. 

b. Providing workers with formal, regular and documented
    communication regarding the progress of an investigation
   while it is underway. 

2. You must ensure workers are consulted in the development of the system of work. 

3. You must ensure the system of work which is developed is reviewed and as necessary revised to ensure it remains effective. 

4. You must ensure that information, training and instruction is provided to workers on the system of work once developed and implemented." (emphasis added) 

The second notice also alleged contraventions of section 19 of the WHS Act and regulation 55C of the WHS Regulation (Second Notice) and provided as follows: 

"Workers may be exposed to a risk to their health or safety from psychosocial hazards in the workplace due to the PCBU's current system of work for the management of conduct and performance being inadequate as workers are allocated alternate duties during an investigation which are not commensurate with their position, duties and functions prior to the investigation which results in the workers being exposed to further psychosocial risks at the alternate duties location from the tasks being performed." (emphasis added)

Relevantly, the Second Notice also provided the following directions to the Department for the purposes of compliance: 

“1. You must ensure, so far as is reasonably practicable, the psychological health and safety of workers by reviewing, implementing and maintaining a safe system of work which minimises the impact on workers while an investigation into misconduct and performance is being undertaken by ensuring workers who are being investigated are placed in alternate duties which are commensurate with their position, duties and functions prior to the commencement the investigation while it is being completed. 

2. You must ensure workers are consulted in the development of the system of work. 

3. You must ensure the system of work which is developed is reviewed and as necessary revised to ensure it remains effective. 

4. You must ensure that information, training and instruction is provided to workers on the system of work once developed and implemented.” (emphasis added) 

Although prompted by a single investigation, it is relevant to note that both notices were directed at the Department’s investigation system as a whole. 

The Department attempted to have the First and Second Notice set aside on internal review, but the internal review unit of SafeWork NSW affirmed both notices on 1 March 2024.  

On 14 March 2024, the Department filed external review applications in the NSW Industrial Relations Commission (Commission). The Department argued, amongst other things, that the psychosocial risk regulations were uncertain and difficult to comply with and that workplace investigations were not an appropriate focus of WHS enforcement. Those arguments were rejected. 

Commissioner O’Sullivan largely upheld both improvement notices, noting that the First Notice was varied to include only part (a), that investigations regarding misconduct and performance of workers were completed in a timely and expeditious manner.  

Investigations are a psychosocial hazard context 

The Commission accepted that workplace investigations are inherently stressful and that it would be highly unusual for an employee subject to an investigation not to experience some level of psychological strain. However, stress alone is not the issue. The critical question was whether the employer has adequate controls in place to manage the foreseeable psychosocial risks arising from the investigation process. 

Delay without safeguards increases risk 

While the Department had guidelines suggesting that uncomplicated investigations should generally be completed within three months, the Commission found those guidelines to be aspirational rather than effective controls. 

There were no enforceable timeframes, escalation triggers, or oversight mechanisms to prevent investigations from drifting. The Commission found that allowing the investigation to continue for many months without meaningful safeguards exposed the Business Manager to prolonged uncertainty and psychosocial harm. 

Role underload is a recognised psychosocial risk 

The second improvement notice was upheld in full. The Commission found that the Business Manager’s alternate duties were supernumerary, lacked meaningful content and were well below her substantive role as a Business Manager. 

The decision recognises that assigning de‑skilled or purposeless work can itself create psychosocial hazards, including role underload, loss of role clarity, diminished professional identity and social harm. The Commission also accepted that having to explain altered work arrangements to colleagues can compound psychological risk. 

Removing an employee from their substantive role may be necessary during an investigation, but it does not, of itself, discharge WHS obligations. Replacement duties must be genuinely suitable and commensurate with the employee’s experience and seniority. 

Systemic problems justify systemic notices 

Finally, the Commission confirmed that an inspector’s investigation into one employee’s experience does not confine an improvement notice to that individual. Where deficiencies are systemic, improvement notices may properly apply across the whole workforce. 

While it was accepted that employee's subject to workplace investigations will be exposed to psychosocial hazards, employers should ensure that: 

• Investigation procedures include safeguards for timely conclusions, depending on the complexity of the investigation. 

• Communication obligations during investigations are clearly defined and followed in practice. 

• Alternate duties are meaningful and commensurate with the employee’s substantive role, otherwise it may be appropriate to stand down the employee on full pay. 

• Psychosocial risk assessments expressly identify and consider workplace investigations and disciplinary processes. 

Should you require assistance to ensure that your workplace investigation procedure is compliant, please contact Employment & Safety partner Matthew Giles.