A misconduct investigation is itself a psychosocial hazard — even when the worker is innocent. That is the effect of a landmark NSW Industrial Relations Commission ruling handed down on 2 March 2026, which upheld improvement notices against an employer whose 10-month investigation left a long-serving worker in crisis. Every Australian employer that investigates staff is now on notice.
Key facts at a glance
- The decision: Secretary, NSW Department of Education v SafeWork NSW (No 2) [2026] NSWIRComm 1014, delivered 2 March 2026.
- The Commission confirmed any misconduct investigation exposes the worker to a psychosocial hazard — the only question is whether the employer’s controls are adequate.
- A “guide only” three-month timeframe with no enforcement safeguards was found inadequate — the investigation ran about 10 months.
- Alternate duties during an investigation must be genuinely commensurate with the worker’s substantive role — a lower-grade role with little real work is itself a hazard.
- A single worker’s complaint can ground an improvement notice covering an entire workforce.
- Arguments that the psychosocial provisions of the WHS Regulation are too vague to comply with were rejected — they are workable and binding.
What happened in this case?
The worker at the centre of the case — referred to in the judgment only as “A” — had been a business manager at a NSW public school for around 14 years. On 4 April 2023 she was advised by letter that she was under a misconduct investigation, was to leave the workplace immediately, and would perform alternative duties at a separate location. The letter gave no particulars of the allegations.
After receiving that letter, the worker attempted to take her own life. She survived. The actual allegations did not arrive until 5 July 2023 — three months after she was stood aside — and by the time SafeWork NSW intervened in February 2024 the investigation had run approximately 10 months. It was ultimately resolved with a caution and reprimand.
The worker complained to SafeWork NSW in November 2023, and an inspector issued two improvement notices under section 191 of the Work Health and Safety Act 2011 (NSW). The Department challenged them — the Commission’s decision on that challenge is what makes this case nationally significant.
A note on this story: this article discusses a suicide attempt, drawn from the published court record. If this content raises anything for you, support is available 24/7 from Lifeline on 13 11 14.
What did the Industrial Relations Commission decide?
The Commission substantially upheld the notices, confirming principles that reach well beyond one department.
| What the Commission found | What it means for employers |
|---|---|
| Any misconduct investigation exposes the worker to a psychosocial hazard — even one who is innocent and later exonerated. | The hazard exists by default; the question is whether your controls adequately minimise the risk. |
| A “guide only” three-month timeframe with no mechanism to monitor or escalate delays is an inadequate system of work. | Investigation timeframes need real accountability safeguards, not aspirational guidelines. |
| Supernumerary alternate duties with little meaningful work exposed the worker to role underload, role conflict and lack of role clarity. | Alternate duties must be genuinely commensurate with the worker’s substantive position. |
| The psychosocial provisions of the WHS Regulation (clauses 55A–55D in NSW) operationalise the primary duty and are enforceable as written. | Arguments that psychosocial obligations are “too vague to follow” will not succeed. |
| One worker’s experience can justify an improvement notice directed at the whole workforce. | An isolated complaint can trigger systemic orders. |
| Having a documented policy is not enough if it isn’t followed in practice. | The gap between written policy and actual practice is where regulatory exposure lives. |
The Department succeeded on one narrow point — a limb about regular documented updates was set aside after the inspector conceded in cross-examination that the written system on that point was adequate. The core findings stood.
Why does this ruling matter outside New South Wales?
The decision applies NSW law, but the provisions it interprets come from the model WHS framework adopted in Queensland, the ACT, the Northern Territory, South Australia, Tasmania, Western Australia and the Commonwealth. Queensland employers have been subject to an enforceable psychosocial hazards Code of Practice since 1 April 2023, and NSW’s codes became enforceable benchmarks on 1 July 2026. Regulators in every state can rely on the same reasoning: an investigation is a workplace activity, and its psychosocial risk must be managed like any other WHS risk.
The ruling lands amid an enforcement build-up: SafeWork NSW added 51 inspectors in March 2026 — 20 dedicated to psychosocial safety — a shift we covered in psychosocial enforcement in 2026.
What are employers now expected to have in place?
The judgment, read with the notices it upheld, sets a clear benchmark. Employers who investigate staff are expected to have a system of work that ensures investigations are completed expeditiously, with safeguards that actually enforce the timeframe; to provide the particulars of allegations promptly; to ensure alternative duties genuinely match the worker’s substantive role; to consult workers in developing that system; and to apply it in every case, not just keep it on file.
Failing to manage psychosocial risk during an investigation breaches the primary duty of care under section 19 of the WHS Act — the same duty that applies to forklifts, heights and confined spaces.
Where does psychological first aid fit in?
Rulings like this are exactly why accredited psychological first aid capability is moving from “nice to have” to core workplace infrastructure. Investigations, restructures and serious incidents are foreseeable moments of acute distress, and the people who manage them need to be equipped to recognise a worker in crisis and connect them with professional support.
FMS Training delivers PUARCV001 Provide Psychological First Aid, a nationally recognised unit of competency, fully online and available Australia-wide. As a registered training organisation (RTO 45189) with over 1,300 five-star reviews, we train managers, HR teams and support officers to become accredited Psychological First Aiders — a practical control that supports your psychosocial risk management system. Explore the accredited Psychological First Aid course.
Frequently asked questions
What did the 2026 NSW ruling say about workplace investigations?
The Industrial Relations Commission confirmed that any misconduct investigation exposes the worker being investigated to a psychosocial hazard, so employers must have controls that eliminate or minimise that risk so far as is reasonably practicable.
Which case established that investigations are a psychosocial hazard?
Secretary, New South Wales Department of Education v SafeWork NSW (No 2) [2026] NSWIRComm 1014, decided by Commissioner O’Sullivan in the NSW Industrial Relations Commission on 2 March 2026.
Does this ruling apply outside New South Wales?
The decision applies NSW law, but it interprets model WHS provisions adopted in Queensland and most other Australian jurisdictions, so regulators across the country can rely on the same reasoning.
How long can a workplace investigation run before it becomes a WHS problem?
There is no fixed legal limit, but the Commission found a “guide only” three-month timeframe without enforcement safeguards was inadequate, and an investigation that ran for around 10 months attracted improvement notices.
Can an employer move a worker to different duties during an investigation?
Yes, but the alternate duties must be genuinely commensurate with the worker’s substantive position — placing a worker in a lower-grade role with little meaningful work was found to be a psychosocial hazard in itself.
Can one worker’s complaint trigger action covering a whole organisation?
Yes. The Commission confirmed that a single worker’s experience can ground an improvement notice directed at an employer’s entire workforce where it reveals a systemic class of risk.
What penalties apply for failing to manage psychosocial hazards?
Psychosocial breaches sit under the same WHS duties as physical hazards, so employers face improvement notices, prohibition notices and prosecution, with substantial court-imposed fines for serious or repeated breaches.
Is psychological first aid training nationally recognised?
Yes. PUARCV001 Provide Psychological First Aid is a nationally recognised unit of competency delivered by registered training organisations such as FMS Training (RTO 45189), online and Australia-wide.
Sources: Secretary, New South Wales Department of Education v SafeWork NSW (No 2) [2026] NSWIRComm 1014 (NSW Caselaw); McCullough Robertson case analysis (7 April 2026); SafeWork NSW — Psychosocial hazards; WorkSafe Queensland — Psychosocial hazards.