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Skodel Blog · May 2026
NSW employer loses bid to declare psychosocial rules unworkable
A March 2026 decision from the NSW Industrial Relations Commission confirmed that employers cannot use definitional complexity to avoid psychosocial safety obligations. It also confirmed that workplace investigation processes must be managed as a psychosocial risk.
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| Skodel Case Analysis |
Secretary, NSW Department of Education v SafeWork NSW (No 2) [2026] NSWIRComm 1014 |
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What happened
NSW Industrial Relations Commission · Decision 2 March 2026
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A school Business Manager was placed under misconduct investigation in April 2023. She was removed from her workplace of 14 years and assigned menial alternate duties with little meaningful work. |
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The investigation ran for 10 months with limited communication about its progress. Her mental health deteriorated significantly during this period. |
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SafeWork NSW issued two improvement notices to the Department in February 2024, citing inadequate systems of work for managing psychosocial risks during investigations. |
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The Department sought to have both notices revoked. The Commission upheld both, with one narrow variation. All three of the Department's legal arguments were rejected. |
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| Skodel Case Analysis |
The Three Arguments |
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What the Department argued and why it failed
Each ground was rejected by Commissioner O'Sullivan
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The regulations are too unclear to comply with
The Department argued clauses 55A-55D were impossible to interpret, making compliance unachievable. The Commission rejected this. Two prior decisions had applied the same provisions without difficulty. Accepting the argument would make psychosocial obligations unenforceable, which is contrary to the objects of the Act.
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Rejected
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One employee's experience cannot support a system-wide notice
The Department argued the Inspector only had evidence from one case and could not issue notices directed at the whole organisation. The Commission found that where the failure lies in a system of work that applies to workers generally, a single case is sufficient to identify a systemic problem.
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Rejected
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The required changes are not reasonably practicable
The Department argued the notices required changes that were impossible to implement at its scale. The Commission found no basis for this. The requirements were largely consistent with what the Department's own guidelines already said should happen but did not.
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Rejected
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| Skodel Risk Analysis |
Investigation Process Failures |
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What the Commission found wrong with the investigation process
Three specific failures identified across the two improvement notices
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No enforceable timeframes
Guidelines existed but contained no safeguards against delay · investigation ran 10 months
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High
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Non-commensurate alternate duties
Duties were menial and supernumerary · created further hazards including role underload and lack of role clarity
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High
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Communication obligations not followed in practice
System of work on paper was adequate · it was simply not applied in this case
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Mod-High
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The Commission drew on Killen v SafeWork NSW and NSW Rural Fire Service (No 3) [2022], which found that an investigation of a similar nature running more than 12 months required regulatory intervention. A system that permits investigations to drag on without procedural safeguards is a contravention, not just poor practice.
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| Skodel Guidance |
For HR and WHS Professionals |
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What to review in your organisation
Four areas to assess against the obligations confirmed in this decision
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Do your investigation guidelines include enforceable timeframes, not just aspirational ones? Are there triggers for escalation when timelines are not met? |
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Are alternate duties assigned during investigations genuinely commensurate with the employee's substantive role and level of seniority? |
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Are communication obligations during investigations documented, monitored, and actually followed in practice? Having a policy is not sufficient if it is not applied. |
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Does your psychosocial risk assessment process capture investigation and disciplinary processes as a hazard context requiring active controls, not just general EAP referrals? |
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Reviewing your psychosocial risk framework
If you want to understand how your current approach holds up against the obligations confirmed in this decision, we are happy to work through it with you.
Get in touch →
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