A recent New South Wales decision has emphasised the importance of actively reducing psychosocial risks across all workplace practices, namely, performance management.
In late 2025, the Department of Defence (the Employer) was convicted of a charge under section 33 of the Commonwealth Work Health and Safety Act (WHS Act), admitting that it failed to take reasonably practicable measures to minimise risks to the health and safety of a Royal Australian Air Force Technician (the Employee).
The Employee was placed on four separate Work Plans regarding his performance management within a 6-month period. During the performance management process, the Employee displayed signs of distress and poor health, of which their supervisors were aware but continued with the performance management process without making any changes to account for the Employee’s mental health. Tragically, the Employee took his own life whilst on duty at a Royal Air Australian Air Force base.
The NSW Local Court held that the Employer had breached its primary duty of care under section 19(1) of the Work Health and Safety Act 2011 (Cth) to ensure, so far as reasonably practicable, the health and safety of its employees, by failing to provide supervisors with training in regard to the use of Work Plans as a performance management tool.
This decision is the first time that a Commonwealth employer has been convicted for failing to take reasonably practicable measures to eliminate or minimise psychosocial risks in a workplace.
The Employer was fined $188,000.00 and an adverse public order was made.
This case emphasises the need for:
- Supervisors to be provided with training about:
- how performance management processes may amount to a psychosocial hazard in particular circumstances;
- identifying psychosocial risks associated with performance management; and
- eliminating or minimising psychosocial risks in performance management processes, such as identifying situations when they should refer a worker for a medical assessment, place them on leave or offer other support, and/or suspend a performance management process;
- Employers to regularly consult with their workers regarding their mental health throughout the course of an ongoing performance management process; and
- Performance management processes which are transparent, consistent, timely and undertaken in consultation with the employee so as to balance performance management with the relevant employee’s health and wellbeing.
This case is a timely reminder that all employers should review their current training and performance management protocols to determine whether these sufficiently address potential psychosocial hazards.
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