When the Investigation Becomes the Hazard
The regulator who came for HR
A Business Manager at a NSW public school, 14 years at her workplace, was told she was under a misconduct investigation, directed to leave that day and not return, and moved to lower administrative duties at another location. She was given no details of the allegations for three months. Seven months in, she complained to SafeWork NSW.
SafeWork's assessment was that her mental health had deteriorated due to the extensive delays in finalising the investigation, the lack of communication during it, and the duties she had been moved into. In February 2024 it issued the Department of Education with two improvement notices for failing to manage psychosocial risks:
Targeted the system of work for investigations. It did not ensure investigations were completed in a timely way, and had no set process or timeframes for formal, regular, documented updates to workers while an investigation was underway.
Targeted alternative duties. Workers under investigation were being given duties that did not match their position, duties and functions, exposing them to further psychosocial risks.
The investigation into the worker ran almost 12 months. Some, but not all, of the allegations were substantiated. Her outcome was a caution and reprimand, effectively a formal warning.
The Department fought the notices. And lost. Twice.
First, it asked SafeWork to review its own inspector's decision. SafeWork looked again and kept both notices in place.
The Department then took the matter to the Industrial Relations Commission. It argued the psychosocial rules were too unclear to comply with, that the inspector did not have a proper basis to issue the notices, and that the required changes were not realistic for an organisation of its size.
The Commission rejected all of it and upheld the notices in March 2026 (Secretary, NSW Department of Education v SafeWork NSW (No 2) [2026] NSWIRComm 1014). Only one part of the first notice was removed, the requirement for documented progress updates, because the Department already had an update process. The problem was that it had not been followed in this case.
Two years of challenge, same result.
What now?
The notices stand, and the Department must comply. The directions require:
workers to be given an estimated timeline at the start of an investigation
alternative duties that match a worker's position, duties and functions
workers consulted in the development of both systems
the systems reviewed and revised as necessary, and
information, training and instruction for workers once the new systems are in place.
Failing to comply with an improvement notice is an offence under the WHS Act. And the notices apply across all of the Department's workplaces, because as the Commission put it, they were directed towards a general class of risk, rather than a specific incident.
What we want YOU to take from this
The investigation process itself presented the psychosocial hazard: the delay and the unsuitable duties. And this was never a grey area. The Code of Practice deals directly with investigations into serious misconduct: fair, objective and timely, workers informed and supported throughout, and risks controlled while the investigation runs. Since 1 July 2026, following the Code in NSW is mandatory, as it already is in Queensland.
But here's the thing. The Department had guidelines too. Its problem was not the absence of words on paper. It was a system that could not hold itself to them. That is what a regulator tests, and it is the difference between a policy and a defence.