Duties of care + employees

Last week the High Court of Australia was due to hear oral argument in the matter of Govier v The Uniting Church in Australia Property Trust. The issue of principle was to be whether an employer may owe a duty of care to an employee when conducting an investigative process. The employee alleged that she suffered psychiatric injury as a result of the employer’s actions.

The grant of special leave to appeal was revoked during the course of oral argument on 13 April 2018, when it became apparent that the contract of employment was not in evidence. Reference to that contract would have been necessary to analyse the tortious duty which the appellant argued for.

The withdrawal of the grant appears to leave us with the decision of the Queensland Court of Appeal, in which the court (at [77] – [78]) held that the employer did not owe the employee the proposed novel duty of care to supply a safe system of investigation and decision-making in relation to the incidents of an employee’s contract of employment, as opposed to a safe system of work in relation to the conduct of tasks for which an employee was engaged.

In the meantime, still pending is the decision of the United Kingdom Supreme Court on whether an employer, when defending a vicarious liability action, owes a duty of care to protect the reputation of the employee who is alleged to have committed the actions for which the employer is vicariously liable.

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