Return to Work Following a Workplace Investigation
We have previously published a number of BLP Briefs dealing with practical issues for schools and principals surrounding the duty of care owed by a school authority to both its staff and students. It is well understood that employers, including principals, owe a duty of care to manage the safety and wellbeing of staff. This can be a tricky issue to navigate, however, when you are required to conduct a formal investigation into allegations of misconduct on the part of a staff member. This BLP Brief has been written to identify some of the considerations that you should have during the formal investigation process.
An essential element of any thorough and legally sound workplace investigation is the proper management of all concerned parties, both during and following the investigation procedure, taking into consideration all circumstances surrounding the investigation. Under the Occupational Health and Safety Act 2004 (Vic), employers owe employees a non-delegable duty of care to provide and maintain a working environment that is safe and without risks to health. Accordingly, a poorly managed and/or performed workplace investigation that results in injury to employees could render the employer liable for breaching these requirements, or can enliven a potential claim for compensation by the employee under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act).
The matter of Freemantle v State of Victoria  VMC 9 (1 May 2020) is a recent case from the Magistrates Court of Victoria which highlights some often overseen issues when managing the health and wellbeing of staff and students during an investigation.
Mr Freemantle had been a secondary school physical education teacher at St Helena Secondary College (the School) since 1982. Mr Freemantle was suspended from November 2017 whilst formal investigations were conducted by the police and the Department of Education and Training (the Department) into an accusation of sexual assault by a pupil of his physical education class. Mr Freemantle denied the allegations and was subsequently cleared of any wrongdoing by both the police (on 3 March 2018) and the Department (on 17 March 2018). He was then allowed to return to work.
Mr Fremantle made a claim for workers compensation under the WIRC Act on the basis that he had suffered a psychological injury by reason of the accusation and the stresses that flowed, including the accusation and investigation. Amongst other things, Mr Freemantle alleged psychological injury by reason of the School’s unreasonable management action, including its failure to support him with his return to work.
Mr Freemantle’s WorkCover application was refused on the basis that his mental injury was caused wholly or predominately by the employer’s management action taken on reasonable grounds and in a reasonable manner. Mr Fremantle disputed this, bringing his claim before the court.
Return to work
Mr Freemantle was advised by the Department in writing on 17 March 2018 that there were no grounds for action against him and his suspension was ended. He was instructed to contact the School regarding his return to work. He was also informed that the pupil remained of the belief that the alleged conduct had occurred, that she is likely to experience some degree of disquiet upon his resumption and that he should, therefore, be cognisant of this and ensure that all interactions with her are transparent and unambiguous.
Mr Freemantle gave evidence in court that this letter left him feeling that there was no acknowledgement that he had done nothing wrong.
A return to work meeting was arranged for the last day of term 1 on 29 March 2018 between Mr Freemantle (with a support person) and the Associate Principal of the School.
Mr Freemantle gave evidence in court that his impression was that the focus of the whole meeting was on the welfare of the student who remained at the School. Mr Freemantle said he wanted to know about the practicalities of his return and the possibility of contact with the student given her continued perception that the alleged conduct had occurred. Mr Freemantle also expressed anxiety about the rumours in the School and the wider local community. He queried why the student had received so much support and what support would be offered to him as the innocent party. He said he felt there was support for the student but that the School had given no thought to him.
Mr Freemantle’s support person also gave evidence that the Associate Principal used language that sounded like she believed the student’s story, provided no real answers to Mr Freemantle’s queries about the practicalities of returning to work and focused on the welfare of the student above Mr Freemantle’s.
Incapacity for work
Following the meeting, Mr Freemantle informed the School in the term break that he would not be able to return to work in term 2. He did not resume his pre-injury duties or any form of employment after that time.
Under the WIRC Act, there is no entitlement to compensation in respect of an injury to a worker if the injury is a mental injury caused wholly or predominantly by any one of the following:
- Management action taken on reasonable grounds and in a reasonable manner by or on behalf of the worker’s employer;
- A decision of the worker’s employer, on reasonable grounds, to take, or not to take, any management action;
- Any expectation by the worker that any management action would, or would not, be taken or any decision made to take, or not to take, any management action.
The Court found that the actions of the employer amounted to management action for the purposes of the WIRC Act, and that the action was taken on reasonable grounds. In reaching this conclusion, Magistrate Hoare noted that once the accusation was reported, the Principal was mandated to initiate a process that included notifying police, leading to the investigation and Mr Freemantle’s suspension from duty. The process enacted was in accordance with the Department’s Critical Actions for Schools template which prescribed the required steps to be taken in response to allegations of sexual assault.
However, having regard to the letters issued to Mr Freemantle and the conduct of the meeting with the Associate Principal on 29 March 2018, the Court held that the management action was not taken in a reasonable manner based on the following:
- The manner in which the Department informed Mr Freemantle it its letter of 17 March 2018 that the student still believed in the truth of the accusation and the implications of that circumstance. In the same correspondence advising him that the Department had found there were no grounds for action against him and inviting his return to work, he was informed for the first time of the student’s ongoing belief in the truth of the accusation.
- When the Associate Principal was arranging the meeting at the end of term one following his receipt of that letter, Mr Freemantle expressed feeling anxious regarding his return to work. The Associate Principal also said she was surprised he brought a support person to the meeting.
- In relation to the manner in which the meeting on 29 March 2018 was conducted, the Court accepted Mr Freemantle’s evidence that much of the focus of the meeting was on the welfare of, and support for, the student. The support person, who was not an active participant in the meeting, told the court that the Associate Principal used language that sounded like she believed the student’s story. The Court found it likely on balance, weighing the whole of the Associate Principal’s evidence, that she approached the meeting with the subjective impressions gained in performing her role of designated child safety officer throughout the investigation. It was noted that the Associate Principal had participated in both interviews of the student with police including being told by police on 19 December 2019 that it was the student’s word against Mr Freemantle’s. The School held, entirely appropriately, utmost concern for the student’s welfare but the purpose of that meeting was to make Mr Freemantle feel supported in returning to work particularly as he had expressed to the Associate Principal in the phone call of 23 January 2018 that he was feeling anxious and, on the Associate Principal’s evidence, was distressed from the outset of the meeting.
- The Associate Principal failed to provide any clarity on practical ways the School would assist Mr Freemantle to integrate back at School and to minimise the potential for interactions between himself and the student. Whilst the Court accepted that details could not be nailed down by the School with particularity, the absence of any information or practical guide gave the impression that no real consideration had been given to how he would re-integrate into the School, particularly given the content of the letter of 17 March 2018.
- The manner in which the information regarding the student was delivered in the Department’s letter of 17 March 2018 had the effect, in the Court’s view, of placing the onus on Mr Freemantle as part of the outcome of the investigation: “to be aware”; of “the need to be cognisant”; and “to ensure .. interactions with [the student] were unambiguous so that they cannot be misperceived”. Delivering such important and sensitive message for the first time in the terms that it did, had the effect, of clouding the Department’s stated finding of no grounds for action and also potentially called into question how viable Mr Freemantle’s return to work at the School might prove to be in practical terms.
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If you have any questions regarding any information in this BLP Brief, we welcome you to contact us at any time.
This is meant as a guide only and should not be taken as legal advice.