Australian court decision a warning that psychosocial hazards must be managed by New Zealand employers
On 19 December 2025, a New South Wales Court made a landmark decision: the first conviction of a Commonwealth employer in Australia for failing to manage psychosocial risks arising from a performance management process. The Australian Department of Defence (Defence) was convicted under sections 19 and 33 of the Commonwealth Work Health and Safety Act 2011 (WHS Act) — the New Zealand Health and Safety at Work Act 2015 is based off the Australian legislation — for breaching its primary duty to ensure worker health and safety, so far as reasonably practicable.
Content warning: the following detail refers to suicide.
The case involved a 34-year-old Royal Australian Air Force (RAAF) Technician who was the subject of four separate Work Plans (a performance management tool) within a six-month period. Despite the worker displaying signs of escalating distress, Defence took no steps to mitigate the risk. In 2020, the worker died by suicide while on duty.
Reasonable steps to minimise psychosocial risks
Defence pleaded guilty, admitting to a failure to take reasonably practicable steps to eliminate, or if not reasonably practicable, to minimise psychosocial risks under the WHS Act. An investigation identified several measures that were both available and reasonably practicable, including:
- Providing proper and adequate training to supervisors to recognise when a Work Plan itself becomes a psychosocial hazard.
- Identifying heightened psychosocial risk when workers are subjected to repeated or prolonged performance management.
- Actively minimising risk by referring workers for medical or psychiatric evaluation when they display signs of distress.
- Pausing or suspending performance management when distress is evident.
Despite the clear warnings of psychosocial harm, the worker was not referred to any support services, nor were any actions taken to reduce the pressure they were experiencing.
The Magistrate imposed a A$188,000 fine on Defence, as well as an adverse publicity order under section 236 of the WHS Act. While the details of the adverse publicity order are yet to be confirmed, it may require Defence to disclose the offence, consequences, and the penalty imposed.
Implications for New Zealand employers
Although the case was decided in Australia, its relevance may extend to New Zealand because the laws relating to psychosocial hazards within the workplace are closely aligned across both jurisdictions.
Under New Zealand’s Health and Safety at Work Act 2015 (HSWA), employers must eliminate risks to health and safety, so far as reasonably practicable, or if elimination is not reasonably practicable, minimise them. “Health” as defined in the HSWA includes psychosocial health (both mental and physical).
WorkSafe New Zealand provides examples of psychosocial hazards that need to be actively managed, including work-related stress. As the Australian case demonstrates, performance management tools can create or exacerbate workplace stress. Employers therefore need to treat performance management plans as potential sources of psychosocial harm.
This includes taking actions such as ensuring managers who undertake these processes are adequately trained to identify psychosocial risks associated with performance management tools, and ensuring such tools are safe, flexible, and capable of being adjusted when harm becomes apparent.
Note: At the time of writing, the decision has not been published publicly. This summary is based on information released by Comcare and other publicly available sources.
If you, or someone you know is struggling with their mental health, please reach out to a medical professional, or contact one of the helplines below:
National Helplines
- Suicide Crisis Helpline – 0508 828 865 (7am – midnight)
- Youthline – 0800 376 633 (24/7)
- Additional support: Helplines | Mental Health Foundation
Fiona McMillan is a Partner in the Employment Law Team at Lane Neave in Auckland. Andrew Shaw is the Managing Partner and Head of the Employment Law Team at Lane Neave in Christchurch. Andy Bell is a Partner specialising in employment law and relationship property at Lane Neave in Wellington. Special thanks to Megan Reed for her contribution to this article.
