Psychosocial risks at work – now a work health and safety issue
Posted on August 08, 2022
Recent amendments to the Work Health and Safety Model Laws and the High Court decision of Kozarov v State of Victoria[1] have confirmed an employer’s duty to workers in respect of psychosocial hazards in the workplace. ‘Psychosocial hazards’ are hazards that can harm workers’ mental health. Psychosocial hazards are now a work health and safety issue and employer’s need to take active steps to mitigate risks to mental health.
Work Health and Safety
SafeWork Australia has published significant amendments to the Model Work Health and Safety Act, Regulations and Codes of Practices (WHS Model Law). One of the key recommendations from this review was amending the model WHS Regulations to deal with how to identify the psychological risks associated with psychological injury and the appropriate control measure to manage those risks.
The model WHS regulations now define psychosocial hazards and risks and require a person conducting a business of undertaking (PCBU) to manage the psychosocial risks in the workplace. Psychosocial hazards include bullying, harassment including sexual harassment and conflict or poor workplace relationships and interactions. Importantly, psychological hazards include a hazard that arises from, or relates to, workplace interactions or behaviors. The Model WHS Regulations also require PCBU’s to have regard to all relevant matters when determining what control measures to implement.
The WHS Model Laws are designed to provide a harmonised approach to WHS laws across all states and territories, however amendments to the WHS Model Laws are not automatically implemented in each jurisdiction and states and territories are responsible for enacting the amendments. We expect South Australia will implement the changes.
Several states have already taken steps to implement some of the recommendations including:
- Victoria –the Occupational Health and Safety Amendment (Psychological Health) Regulations is expected to come into effect shortly, which require employers to identify psychological hazards and control risks;
- New South Wales –the Code of Practice for Managing psychosocial hazards at work was introduced and provides practical guidance on the process a PCBU could use to identify psychosocial hazards at work;
- Western Australia – introduced three Codes of Practices covering a wide range of inappropriate workplace behaviours: the Code of Practice on Workplace Behaviour, the Code of Practice on Psychosocial Hazards in the Workplace and the Code of Practice on Violence and Aggression at Work.
Kozarov v State of Victoria
In this High Court decision, Ms Kozarov was a solicitor working in the Specialist Sexual Offences Unit (SSOU) in the Victorian Office of Public Prosecutions (OPP), which included work on sexual abuse claims. Ms Kozarov sought damages for psychiatric injuries arising from her cumulative exposure to vicarious trauma in her cases.
In the first instance, it was held that the OPP had breached its duty of care by failing to take reasonable steps to prevent Ms Kozarov’s psychiatric injuries in the course of her employment as a solicitor and she was awarded damages.
On appeal, the Court agreed with the finding that the OPP was on notice of a risk to Ms Kozarov’s mental health by the end of August 2011. However, the Court disagreed with the finding that the breach of duty caused the exacerbation of Ms Kozarov’s psychiatric injury as there was insufficient evidence that protective steps, such as rotating Ms Kozarov to a different unit would have prevented her psychiatric injury. Accordingly, there was a lack of causation between the breach of duty and the exacerbation of Ms Kozanrov’s psychiatric injury.
The High Court had to consider whether the OPP failed to take reasonable measures in response to evident signs of psychiatric injury, and whether the OPP’s failure caused an exacerbation of psychiatric injury.
The High Court found that the OPP failed to provide Ms Kozarov with a safe system of work and this failure exacerbated her psychiatric injuries, that a reasonable employer would have observed indicative signs that Ms Kozarov was not coping with her workload and the effects of vicarious trauma and that her mental health was at risk. The Court also found that it was likely Ms Kozarov would have accepted medical advice to rotate out of the SSOU and this was not challenged by her application for a promotion during her employment.
Justices Kiefel and Keane confirmed that the content of the duty of care owed by an employer to an employee includes ‘active steps for the care of the psychiatric health’ of the employee and their fellow employees and noted that there may be features of a particular job which mean that the work is ‘inherently and obviously dangerous to the psychiatric health of the employee’.
In addition, although there were evident signs in this case, it was not necessary for Ms Kozarov to exhibit signs to oblige the OPP to take reasonable steps to safeguard her mental health, in circumstances where the OPP already knew the risks to mental health in the SSOU as evidenced by the terms of their Vicarious Trauma policy.
Key Takeaways
- The High Court decision confirms that employers must take a proactive approach to control known risks to the psychological health and safety of workers, including known risks arising from the nature of the work being undertaken by the workers.
- Employers should review existing policies or develop new policies that set the standard of workplace behaviour and enable workers to raise concerns and report unreasonable behaviour.
- It is important that employers follow their own policies as these policies may be relevant in assessing whether the employer was on notice of those risks and took appropriate steps.
- Employers should provide information, instruction, training and supervision to employees in relation to expected behaviour in the workplace.
Please contact our workplace relations team if you require assistance.
[1] [2022] HCA 12.
