Australia’s workplace landscape has transformed. With the introduction of new psychosocial hazard laws, employer’s safety responsibilities have expanded beyond physical safety to explicitly include psychological well-being.
Businesses must now address mental health risks—such as bullying, harassment, and burnout—with the same seriousness as physical dangers like tripping hazards or machinery faults.
The regulatory focus on psychological safety has intensified. Companies now face serious penalties for non-compliance. To protect your business and your people, understanding how to investigate these matters with procedural fairness is no longer optional—it is essential.
Need immediate advice? Call Jolasers Investigations on 0418 101 164.
Understanding New Psychosocial Hazard Laws
The updated Work Health and Safety Act now mandates that Persons Conducting a Business or Undertaking (PCBUs) manage psychosocial hazards proactively. You cannot wait for a complaint to occur; you have a positive duty to eliminate or minimise these risks.
Safe Work Australia’s Code of Practice provides the framework. It covers sensitive matters including sexual harassment, gender-based harassment, and workplace aggression.
Employer Responsibilities
Under this new framework, businesses must:
- Identify hazards (e.g., high workloads, poor support, toxic culture).
- Assess the risks these hazards pose to workers.
- Control the risks through policy and procedure.
- Review control measures regularly.
Current workplace policies likely require updating to align with these changes. This ensures you avoid potential breaches and maintain a compliant safety management system.
When to Initiate a Workplace Investigation
Not every conflict requires a formal investigation, but under the new laws, failing to investigate a serious psychosocial hazard can be deemed negligence. Determining the appropriate response is critical.
Formal Investigation vs. Informal Resolution
Deciding which path to take depends on the severity of the allegation and the potential outcome. Use this guide to determine your approach:
| Formal Investigation Required | Informal Resolution Appropriate |
|---|---|
| Serious policy breaches (e.g., theft, fraud) | Minor interpersonal conflicts |
| Sexual harassment claims | Communication misunderstandings |
| Bullying or discrimination | Performance-related feedback |
| Repeat behaviour patterns | Isolated, low-risk incidents |
Preparing for the Investigation Process
Effective preparation protects the integrity of the process. If an investigation is flawed from the start, the findings may be overturned by the Fair Work Commission.
Internal vs. External Investigators
Choosing the right investigator is a critical decision:
- Internal Staff: Cost-effective and knowledgeable about company culture. Best for minor issues.
- External Experts: provide complete independence, objectivity, and specialized experience. Best for serious allegations, matters involving senior management, or complex psychosocial claims.
Jolasers Investigations recommends engaging an external investigator for any matter involving potential dismissal to ensure impartiality.
Conducting Procedurally Fair Investigations
Procedural fairness (natural justice) is the cornerstone of a defensible investigation. Without it, even a guilty employee can win an unfair dismissal claim.
Key Elements of Fairness:
- The Hearing Rule: The respondent must know the specific allegations against them and be given a reasonable opportunity to respond.
- The Bias Rule: The investigator must be free from actual or perceived bias.
- The Evidence Rule: Findings must be based on logical, probative evidence, not suspicion or gossip.
Trauma-Informed Approach
Given the focus on psychosocial safety, investigations must be trauma-informed. This means conducting interviews in a way that minimizes distress and avoids re-traumatizing complainants, while still gathering the necessary facts.
Evidence Gathering and The “Balance of Probabilities”
In workplace investigations, the standard of proof is the “Balance of Probabilities.” This differs from the criminal standard (“Beyond Reasonable Doubt”).
The investigator must determine, based on the evidence, whether it is more likely than not that the alleged conduct occurred. This requires:
- Witness Statements: Recording accounts verbatim using open-ended questions.
- Evidence Matrices: Cross-referencing claims against physical evidence (emails, CCTV, logs).
- Credibility Assessment: Evaluating the reliability of conflicting accounts.
Making Findings and Outcomes
Once the findings are delivered in a comprehensive report, the business must determine the outcome. Resolution options might include:
- Disciplinary Action: Warnings or termination for proven misconduct.
- Restorative Justice: Mediation or apologies for relationship repair.
- Systemic Change: Updating policies or conducting training if the issue was cultural.
Conclusion
Navigating Australia’s evolving psychosocial hazard laws demands a commitment to fairness and safety. A poorly conducted investigation can cause more damage than the initial incident.
Engaging experienced professionals helps mitigate these risks and ensures compliance with Australian regulatory requirements.
Facing a Complex Complaint?
Jolasers provides independent, procedurally fair workplace investigations to help you navigate new safety laws.
Telephone: 0418 101 164 (Stephen Oliver)
Common Questions
What is a psychosocial hazard?
A psychosocial hazard is anything at work that could harm someone’s mental health. This includes bullying, sexual harassment, high job demands, and poor support.
What is the ‘Positive Duty’?
Under the Sex Discrimination Act, employers now have a ‘positive duty’ to take reasonable and proportionate measures to eliminate sexual harassment and discrimination, rather than just reacting to complaints.
Why use an external investigator?
External investigators eliminate perceived bias. This is crucial for serious allegations where the outcome (such as termination) might be challenged in the Fair Work Commission.