In late 2025, the New South Wales Local Court convicted the Department of Defence for breaching its primary duty of care under the Work Health and Safety Act 2011 (Cth) due to their failure in managing psychosocial risks.
This case is an important one, not just because of who the employer was, but because of why they were prosecuted.
Importance of case
- It is the first time a Commonwealth employer has been convicted for failing to take reasonably practicable steps to manage psychosocial risks.
- The Department admitted it failed to train supervisors on how to use a performance management tool safely.
- The Court imposed a $188,000 fine (mid-range for the offence) and made an adverse publicity order, which is a reputational consequence many employers underestimate.
This case was not about the absence of policies because the Department had all relevant policies in place. It was about what actually happened in practice in the workplace.
What went wrong
Following the death of a Royal Australian Air Force technician while on duty at Williamtown, Comcare investigated how the Department managed the worker’s performance. It found that in the six months before his death, the worker was placed on four separate performance plans. During that time, he showed escalating signs of distress and ill-health, and whilst his supervisors knew that he was struggling, they did not pause the process, provide meaningful support, direct him to take leave, or intervene to reduce the known effects on the worker’s health.
Comcare alleged (and the Department ultimately admitted) that the psychosocial risks associated with this process were serious, foreseeable, and unmanaged.
The critical failure that led to a conviction in this case was that supervisors were expected to apply the performance framework without training, oversight, or verification that it was being used safely.
Message for Employers
Policies do not control risk, people do.
If your controls rely on policies, procedures, or frameworks:
- those administering them must be trained on their real-world application;
- staff must understand when a process itself becomes a psychosocial hazard; and
- the organisation must monitor and verify that controls are actually being followed.
Performance management, in particular, should always be approached with a WHS lens, not just a HR one.
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