When bullying and harassment complaints are handled without a work health and safety (WHS) lens, businesses expose themselves to unnecessary risk. Two WHS lawyers explain why this matters.

Organisations that respond to reports of psychosocial hazards (e.g. bullying, harassment and other harmful workplace behaviours and practices) through a purely employment law lens, without also applying a WHS lens, may face significant legal exposure.

Without a WHS perspective, organisations may delay implementing control measures until allegations are proven (or fail to implement control measures at all if allegations cannot be substantiated), rather than proactively managing foreseeable psychosocial risks across the organisation.

Below, we examine why responding to reports of psychosocial hazards requires not only a traditional employment law approach, but also a systematic WHS risk management process.

Investigating psychosocial risks through a WHS lens

WHS laws require a systemic response to reports of psychosocial hazards: one focused on identifying, assessing and controlling the underlying causes of the risk, not just managing the immediate complaint.

In some cases, that means conducting a WHS investigation, either separately or in combination with an employment law investigation.

A WHS investigation is distinct from an employment investigation in both its purpose and its scope. A WHS investigation is not focused on determining whether the facts of a particular complaint are proven, but instead asks a different set of questions entirely, such as:

• What hazard exists?
• Who is exposed to it?
• What does the organisation need to do to eliminate or minimise that risk, as far as is reasonably practicable?

The purpose of a WHS investigation is to assess the adequacy of existing risk controls and to identify any WHS risks that have not been eliminated or minimised, so far as is reasonably practicable.

Failing to conduct a WHS investigation can leave an organisation believing it has met its WHS obligations when, in fact, it hasn’t.

“Even where an allegation cannot be substantiated, a WHS investigation may still identify underlying risks that have not been adequately controlled, or for which more effective control measures are available.”

5 important WHS considerations when responding to reports of psychosocial hazards

1. An allegation does not need to be substantiated before risk controls are implemented

While investigators are expected to carefully assess the available evidence before reaching factual findings, WHS law obliges organisations to act on foreseeable risks as they arise.

This means implementing risk control measures while an investigation is ongoing, rather than deferring risk mitigation action until factual conclusions are reached.

2. Risk controls should be considered for implementation on an organisation wide basis

A WHS investigation is not limited to the specific facts or individuals involved in a particular complaint.

Where a psychosocial hazard is identified as a result of an allegation, the risk control measures should be considered for implementation on an organisation wide basis. They may not be limited to the particular circumstances of the complaint.

3. Psychosocial risk management duties exist independently of whether a complaint is substantiated

Even where an allegation cannot be substantiated, a WHS investigation may still identify underlying risks that have not been adequately controlled, or for which more effective control measures are available.

For example, imagine a worker reports they’re experiencing significant stress as a result of how workload is being distributed within their team. An investigation finds the complaint cannot be substantiated due to insufficient evidence. Case closed, on paper.

However, a WHS investigation may still reveal that workload allocation processes are poorly defined, that there is no mechanism for employees to raise concerns early or that the team has been under-resourced for an extended period.

Those are hazards. And the organisation’s obligation to control them exists independently of whether any individual was found to have done something wrong.

4. Balancing confidentiality with system-wide risk management.

Confidentiality is critical in psychosocial risk matters, but it cannot be so absolute that it prevents internal reporting or stops organisations from identifying and controlling the underlying risks.

Applying a WHS lens means balancing individual privacy with the need for sufficient information sharing to enable systemic risk factors to be identified and controlled. In practice, this typically means HR practitioners report psychosocial risk matters to the safety team on an anonymous basis, with enough detail for the team to understand the hazard, assess the risk and implement organisation-wide risk controls.

5. Removing the adversarial context

While employment investigations often occur within an adversarial context such as of an allegation made by an individual and a potential disciplinary context, overly legalistic or adversarial communications can exacerbate psychological distress.

Approaching psychosocial risk matters from a WHS lens removes any adversarial context. It promotes clear and respectful communications which demonstrate genuine care for all the participants and avoids language that may cause psychological harm.

Key message for HR practitioners

Responding to reports of psychosocial hazards through a purely employment law lens, without also applying a WHS lens, can leave organisations significantly exposed.

By conducting both a WHS and employment law compliant investigation (whether separately or combined), organisations can satisfy both WHS and employment law duties, and proactively manage foreseeable psychosocial risks across the organisation, irrespective of whether or not a particular allegation is proven.

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