A practical guide for HR and WHS professionals navigating the critical period after a psychological injury claim lands
When a psychological injury claim hits your desk, the clock starts running. What you do in the first 90 days often determines whether your organisation comes through with its compliance standing intact or faces regulatory scrutiny, escalating costs, and reputational damage.
This roadmap walks you through the immediate obligations, documentation requirements, and communication protocols that separate defensible responses from costly mistakes.
The stakes here are significant. Work-related mental injuries now account for 18% of all new WorkCover claims in Victoria. Nationally, psychological injury claims represent 12% of all serious workers compensation claims, with a 161% increase over the past decade. Workers with psychological injuries take almost five times longer to return to work than those with physical injuries. These claims cost more, take longer to resolve, and carry greater regulatory risk. How you respond in the early days shapes everything that follows.
1. Immediate Obligations: Days 1 to 7
The first week after someone reports a psychological injury sets the trajectory for everything that follows. Your obligations begin the moment you become aware of the claim. Not when paperwork arrives. Not when you feel ready to respond. The moment you know.
Review Triggers Under Victorian Regulations
Victoria's Occupational Health and Safety (Psychological Health) Regulations 2025 came into effect on 1 December 2025. Under these regulations, employers must review their psychosocial risk control measures whenever an employee reports a psychological injury or psychosocial hazard. This is not optional. It is a regulatory requirement.
The Victorian Regulations specify five mandatory review triggers:
Before you alter any process or system of work that could change psychosocial risks
When new information about a psychosocial hazard becomes available
When an employee or someone acting on their behalf reports a psychological injury or psychosocial hazard
After any notifiable incident involving psychosocial hazards
After receiving a request from a Health and Safety Representative
A workers compensation claim for psychological injury automatically triggers point three. Your review obligation exists whether the claim is ultimately accepted or contested.
For detailed guidance, see WorkSafe Victoria's Compliance Code for Psychological Health and the MinterEllison summary of the new regulations.
Investigation Requirements Under the Commonwealth Code
The Commonwealth Work Health and Safety (Managing Psychosocial Hazards at Work) Code of Practice 2024 introduced new Part 8 requirements for responding to reports, complaints, or incidents involving psychosocial hazards. This Code applies directly to Commonwealth employers, but it represents best practice guidance that regulators across all jurisdictions increasingly expect organisations to follow.
Part 8 says that when a psychological injury is reported, you must conduct a WHS investigation that is separate from any workers compensation investigation. The focus of your WHS investigation is not about determining compensation entitlements. It is about identifying whether psychosocial hazards exist and whether your control measures are doing their job.
For more information, see Comcare's guidance on the new Code of Practice and the Global Workplace Insider analysis of key differences from the model code.
Initial Documentation Requirements
Within the first seven days, document the following:
When and how you received the claim, and who received it
Your initial communications with the affected worker
Actions you took to ensure immediate safety
Your decisions about who will conduct initial reviews
How you preserved relevant records and evidence
Notification to your insurer (timeframes vary by jurisdiction: 48 hours in NSW, 3 business days for Part A in Victoria with full documents within 10 calendar days)
Do not wait for perfect information before you start documenting. Regulators understand that early records will be incomplete. They expect to see evidence that you responded promptly and systematically.
2. The Ten Principles for Responding to Reports and Complaints
The Commonwealth Code of Practice 2024 sets out ten principles that should guide your response to any report, complaint, or incident involving psychosocial hazards. These principles are not aspirational statements. They represent the standard against which regulators and courts will measure your response.
1. Act Promptly
Delay compounds psychological harm and erodes trust. Acknowledge the claim within 24 hours and communicate your initial response plan within the first week. Research shows that workers who perceive their employer responded promptly have significantly higher return to work rates.
2. Ensure Immediate Safety
Before anything else, assess whether the worker faces ongoing exposure to the alleged hazard. If the claim involves bullying, harassment, or conflict with a specific person, consider what interim measures you need to prevent further harm. Do this without prejudging the outcome.
3. Treat All Matters Seriously
You may feel tempted to minimise or dismiss a claim, particularly when you think the worker's account is incomplete or inaccurate. Resist this temptation. It creates significant legal exposure. Every psychological injury claim deserves proper assessment, regardless of your initial impressions.
4. Use a Trauma Informed Approach
Recognise that the worker may be experiencing ongoing psychological distress. Your processes and communications should avoid re-traumatising them. Be mindful of interview settings, allow adequate time for responses, and avoid unnecessarily adversarial approaches.
5. Maintain Confidentiality
Share information only with people who need it to respond to the matter. Breaching confidentiality can compound harm to the worker, prejudice fair investigation, and expose you to additional legal liability. Document who has access to claim information and why.
6. Be Neutral
Avoid predetermined conclusions. Do not let your prior knowledge of the parties shape your assessment before you gather facts. If the claim involves someone in senior management, consider whether internal investigation is appropriate or whether you need external expertise.
7. Support All Parties
Both the person making the claim and any person named in the complaint deserve support during the process. Ensure both have access to Employee Assistance Programs and understand what to expect. Being subject to allegations can itself cause psychological harm.
8. Do Not Victimise
Workers who report psychological injuries have legal protection from adverse treatment. Watch for any changes to their role, responsibilities, or treatment that could look like retaliation, even if unintended. Document decisions affecting the worker to show you made them for legitimate reasons.
9. Communicate Process and Outcomes
Keep the affected worker informed about what will happen, the approximate timeframes, and who they can contact with questions. When the process concludes, communicate outcomes appropriately while respecting privacy obligations to other parties.
10. Keep Records
Document decisions, actions, and communications throughout the process. Your records should let a third party, whether an insurer, regulator, or court, understand what you did, when you did it, and why. Gaps in documentation create adverse inferences.
3. Documentation Requirements Throughout the 90 Day Period
Documentation is not bureaucratic overhead. It is your primary defence if someone later scrutinises your response. Regulators, insurers, and courts reconstruct what happened based on contemporaneous records. From an evidentiary perspective, what you did not document often did not happen.
Records You Must Create and Retain
Your documentation should include:
Initial claim notification and response records
Risk assessment documentation reviewing existing controls
Meeting notes from consultation with the affected worker
Investigation plans, interview records, and findings
Any changes you made to control measures because of the review
Decisions and rationale, including decisions not to change controls
Return to work planning documentation
Communications with the insurer
Evidence of consultation with Health and Safety Representatives where applicable
How to Document Without Creating Legal Exposure
Here is the tension you face. Thorough documentation protects you, but careless documentation can hurt you. Every document you create may be discovered in litigation or regulatory proceedings.
Follow these practical guidelines:
Record facts objectively. Do not characterise the worker's claim as exaggerated or suspicious.
Document what people said, not your interpretation of their motives or credibility.
Keep drafts and communications professional. Assume a court may read them.
When seeking legal advice, clearly mark communications as privileged and state they are for the dominant purpose of obtaining legal advice.
Keep factual investigation records separate from legal strategy discussions.
Common Documentation Failures Regulators Find
WorkSafe and other regulators consistently identify these documentation gaps when they examine organisational responses to psychological injury claims:
No evidence of risk assessment review after the claim
Undated documents or documents created after the fact
No record of consultation with workers or HSRs
Missing rationale for decisions not to change control measures
Gaps in communication records with the affected worker
No documented follow up to assess whether control measures work
4. Conducting Reviews Without Creating Additional Legal Exposure
A psychological injury claim triggers two distinct review requirements that organisations often mix up. This confusion hurts them. The workers compensation investigation asks whether the worker is entitled to benefits. The WHS investigation asks whether hazards exist and whether your controls work. These serve different purposes and require different approaches.
How to Structure Internal Reviews
Your WHS review should focus on whether psychosocial hazards exist and whether your control measures work. This is forward looking. You want to know how to prevent harm from continuing or recurring. The workers compensation investigation looks backward. It asks what caused this particular injury and whether the claim qualifies for compensation.
You can use material gathered in an HR or WHS investigation for workers compensation purposes, but the reverse is not always true. Keep these processes distinct while recognising they inform each other.
When to Bring in External Investigators
Consider external investigation when:
The complaint involves senior management or executives
Your internal team lacks the expertise for complex investigations
People perceive bias that could undermine confidence in your findings
The matter will likely go to litigation or regulatory action
You need investigation findings protected by legal professional privilege
Legal Privilege: What You Need to Know
Engaging a lawyer to conduct a workplace investigation does not automatically make the report privileged. Recent Fair Work Commission decisions clarify this point.
In Crafti v Cohealth Limited [2025] FWC 3285, the FWC ordered production of an external investigation report despite the employer's claim of legal professional privilege. The Commission found that legal professional privilege only applies if the dominant purpose of the investigation is to obtain legal advice. It does not apply if the main purpose is to determine whether misconduct occurred or to inform disciplinary decisions.
Key takeaways from this decision:
The formal engagement letter stating a legal advice purpose was not enough. The Commission looked at the actual surrounding circumstances.
Email correspondence showing the investigation was to "continue" and "finalise" an internal disciplinary investigation undermined the privilege claim.
Disclosing the evidentiary basis of findings to the employee waived any privilege that might have existed.
As Holding Redlich noted, the decision serves as "a cautionary reminder that engaging investigators through legal representatives does not guarantee that the investigation will be protected by privilege."
If you want privilege to apply, you must structure and document the investigation from the start as being primarily for obtaining legal advice. The Investigation Protocol you give to participants should state this purpose clearly. Even then, disclosing the evidentiary basis of your findings to the worker may waive privilege over the entire report.
Practically speaking, most workplace investigations cannot maintain privilege because their primary purpose is to investigate complaints and inform employment decisions. Plan accordingly.
5. Communication with the Affected Worker
Research consistently shows that the employer's response to a psychological injury claim is one of the biggest factors in return to work outcomes. According to Safe Work Australia research, workers who perceive their employer responded positively to their injury achieve return to work rates of 79%, compared to 52% for workers who do not perceive a positive employer response.
Your Contact and Support Obligations
Your first instinct when a psychological injury claim arrives may be to minimise contact with the worker to avoid complicating matters. This instinct is usually wrong. Research and best practice both show that supportive, appropriate contact from the employer helps recovery and return to work.
In Victoria, workers with psychological injury claims can access provisional payments for treatment for up to 13 weeks while their claim is being assessed. Make sure the worker knows about this entitlement. Check that your administrative processes do not delay their access to treatment.
Return to Work Consultation
Workers compensation legislation across Australian jurisdictions requires employers to consult with injured workers about return to work planning and to provide suitable duties where reasonably practicable. These obligations apply to psychological injuries just as they apply to physical injuries.
Effective return to work consultation involves:
Reviewing both physical and psychological demands of available tasks
Matching the worker's current capacity to available work
Talking with treating practitioners about what duties you can offer
Offering to participate in medical case conferences where appropriate
Setting expectations across the workplace that the worker will be supported during recovery
For detailed guidance, see SIRA's resources on responding to psychological injury and WorkSafe Queensland's guide on supporting workers with mental injuries.
What to Say and What to Avoid
Do say:
Express genuine concern for their wellbeing
Ask what support they need
Explain the process and likely timeframes
Give contact details for EAP and other support services
Keep communication channels open
Do not say:
Anything that expresses scepticism about the claim
Anything that admits liability
Anything that pressures them about return to work timeframes
Anything about the claim to colleagues who do not need to know
Anything suggesting changes to their role or conditions without proper process
6. Communication with the Broader Workforce
When a psychological injury claim becomes known in your workplace, whether through rumour, observation, or necessity, you face a communication challenge. Balancing confidentiality obligations against the need to maintain trust and psychological safety across your workforce requires careful navigation.
Balancing Confidentiality and Transparency
Privacy legislation and basic fairness require you to protect the identity and details of workers who lodge claims. At the same time, other workers may face the same hazards, may have witnessed relevant events, or may simply need reassurance that you take psychological safety seriously.
Follow this general principle: communicate at the level of systems and processes, not individual cases. You can acknowledge that a review of psychosocial hazards is underway without identifying who triggered that review.
Managing Rumour and Speculation
Vacuum invites speculation. When workers notice a colleague's absence or observe an investigation underway, they fill informational gaps with their own assumptions. Often these assumptions are inaccurate and sometimes damaging.
Consider brief, factual communications that acknowledge you are addressing something without providing identifying details. For example:
"We are conducting a review of workplace arrangements in this area as part of our ongoing commitment to psychological health and safety. Please direct any questions to HR. We ask that everyone respect the confidentiality of matters under review."
Showing Organisational Commitment
A psychological injury claim, while difficult, gives you an opportunity to demonstrate that you take psychological safety seriously. How you respond sends signals to every other worker about whether it is safe to raise concerns.
Use the claim as a catalyst for broader communication about your psychosocial hazard management approach without connecting that communication to the specific claim. Reinforce available support services, remind workers of reporting channels, and show visible leadership commitment to psychological health.
7. What Regulators Look For When Examining Your Response
WorkSafe and other regulators do not just assess whether harm occurred. They assess whether your organisation had appropriate systems in place and responded adequately when issues arose. Understanding what regulators look for helps you build a response that will withstand scrutiny.
Common Failures That Trigger Enforcement Action
Regulators consistently identify these failures:
No documented risk assessment for psychosocial hazards
Failure to review controls after a claim or incident
No evidence of consultation with workers about psychosocial hazards
Over reliance on training and EAP as the only control measures
Failure to address systemic hazards after individual complaints
Delayed or inadequate response to reports of harassment or bullying
What Demonstrates Good Psychosocial Risk Management
Regulators look favourably on organisations that can show:
Proactive hazard identification that does not rely solely on complaints
Higher order controls focused on work design rather than individual resilience
Regular review of HR data for early warning signs like absenteeism, turnover, and grievances
Documented consultation with workers and HSRs
Clear escalation pathways and accountability for psychosocial risk
Evidence that controls are monitored and revised when needed
How Your Response Quality Affects Regulatory Outcomes
WorkSafe Victoria has said that inspectors will consider factors including business size, risk profile, and the maturity of psychosocial risk management practices when determining their regulatory response. Organisations that can show they took reasonable steps, even if those steps were not perfect, fare better than those who cannot show any systematic approach.
The quality of your response to a psychological injury claim often influences whether regulators pursue enforcement action. Prompt, systematic, documented responses signal an organisation that takes its obligations seriously. Delayed, ad hoc, undocumented responses signal the opposite.
Your 90 Day Checklist
Days 1 to 7: Immediate Response
Acknowledge receipt of claim to the worker within 24 hours
Notify your workers compensation insurer within your jurisdiction's required timeframe (48 hours in NSW, 3 business days for initial notification in Victoria)
Assess immediate safety and implement interim measures if needed
Preserve relevant documents and evidence
Communicate process and support options to the worker
Document all initial actions and decisions
Days 8 to 30: Investigation and Review
Conduct psychosocial risk control review as required under regulations
Decide whether internal or external investigation is appropriate
Consult with Health and Safety Representatives where applicable
Begin return to work planning with the worker and treating practitioners
Maintain regular contact with the affected worker
Document investigation methodology, interviews, and emerging findings
Days 31 to 60: Control Implementation
Complete investigation and document findings
Implement revised control measures where your assessment identifies gaps
Document decisions about controls, including rationale for decisions not to change
Communicate outcomes to relevant parties while maintaining confidentiality
Progress return to work planning and suitable duties identification
Days 61 to 90: Monitoring and Review
Monitor effectiveness of implemented controls
Support return to work if the worker has recovered capacity
Review whether broader systemic changes are needed
Compile documentation file showing compliance with obligations
Schedule ongoing monitoring and review of psychosocial hazard controls
Conclusion
The first 90 days after a psychological injury claim do not have to be a scramble. With clear processes, systematic documentation, and commitment to the principles in this roadmap, you can navigate this challenging period while meeting your compliance obligations and supporting the worker's recovery.
The organisations that handle these situations well are not those that never receive claims. They are the ones that respond with competence, consistency, and genuine care for worker wellbeing.
Key References
Victorian Regulations and Guidance
Commonwealth Code of Practice
National Statistics and Research
Safe Work Australia - Key Work Health and Safety Statistics 2025
Safe Work Australia - Psychological Health and Safety in the Workplace Report
Safe Work Australia - Return to Work in Psychological Injury Claims
Safe Work Australia - Workers Compensation for Psychological Injuries
Legal Privilege and Investigation Guidance
Return to Work Resources
Legal Analysis and Commentary
MinterEllison - Victoria's New Psychosocial Health Regulations
Clayton Utz - Victorian Employers Get New Requirements on Psychosocial Hazards
K&L Gates - The Victorian Psychosocial Regulations Explained
Global Workplace Insider - New Commonwealth Code of Practice
Disclaimer: This article provides general information about workplace health and safety obligations relating to psychological injury claims. It does not constitute legal advice. Obligations vary between jurisdictions, and specific circumstances may require different approaches. Seek legal advice for guidance on your particular situation.
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