A Legal First - Performance Management as a Risk

A Legal First in Commonwealth Conviction - Performance Management as a Risk

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Content warning: This article refers to a workplace fatality.

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For the first time, a Commonwealth employer was convicted for failing to manage psychosocial risks under federal WHS laws.

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The facts

• The worker was subjected to four separate Work Plans over six months
• The plans were used as a performance management tool
• During this period, the worker showed escalating signs of distress and ill-health
• He took his own life while on duty at RAAF Base Williamtown
• Defence pleaded guilty to a single charge under section 33 of the Work Health and Safety Act 2011, admitting it failed to take reasonably practicable steps to eliminate or minimise psychosocial risks.
• The court found Defence breached its primary duty of care by failing to ensure supervisors were properly trained to use the work plan procedure.

This was not a failure of policy. It was a failure of implementation, supervision, and intervention.

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Court outcome

In addition to the conviction, the court imposed an adverse publicity order. An enforcement mechanism requiring Defence to publicly disclose:

• The offence
• The consequences
• The penalty imposed

For large organisations, this represents a reputational control failure as well as a legal one.

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Controls that were available, but not used

The investigation identified multiple reasonably practicable controls that were available at the time, including:

• Training supervisors to recognise when a work plan itself becomes a psychosocial hazard
• Identifying heightened psychosocial risk where workers are subject to repeated or prolonged performance management
• Actively eliminating or minimising risk by:
  • Referring workers for medical or psychological assessment
  • Pausing or suspending performance management where distress is evident

Despite clear warning signs, the worker was not referred to support services, not placed on leave, and no action was taken to reduce the pressure being experienced.

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Performance management risks

Anecdotally, this is where much discomfort lies for organisations. Performance management sits at the intersection of:

• Compliance
• Leadership capability/HR
• Mental health
• And psychosocial risk/WHS

And in many workplaces, it has been challenging to govern this intersection effectively.

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Three key lessons

1. Performance management is a psychosocial riskIt’s not just an HR process. Once performance management starts, it creates real psychological risk that must be actively managed like any other safety hazard.

2. Manager capability matters more than policiesManager capability is critical and requires EQ. If managers can’t recognise distress or respond appropriately, the risk is not being controlled.

3. Warning signs must trigger actionWhen distress is visible, continuing the process without change increases risk. Pausing, adjusting, or engaging support is a safety decision, not a failure.

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Skodel launched a FREE tool to strengthen Psychosocial Compliance in 2026

Skodel has launched a free and simple psychosocial planning tool, which provides a clear, structured way to document hazards, contributing factors, consequences and controls using a bow-tie format. You could map out your plan for governing performance management risks today.

Try the tool free today -->

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