The High Court confirms employer's positive duty to keep employees safe from work-related psychiatric injuries

The High Court recently handed down its decision in Kozarov v Victoria [2022] HCA 12, in which it made clear that employers have a duty to safeguard their employees from work-related mental harm - even in circumstances where there is a vicarious trauma policy in place.

In this case, the applicant had been a solicitor in the Specialist Sexual Offences Unit (SSOU) of the Victorian Office of Public Prosecutions since 2009. In their work, the applicant was involved in prosecuting serious sexual offences, and part of this included working with survivors and viewing explicit material on a daily basis.

The applicant began suffering from PTSD in mid-2011 due to the vicarious trauma she was suffering in her employment. The applicant sued her employer, alleging that they were negligent in preventing psychiatric injury.

Before the applicant commenced her employment, the employer was already on notice of the risks of harm to solicitors exposed to vicarious trauma. This was evident because of the existence of the employer’s vicarious trauma policy, and its implementation of vicarious trauma workshops for staff. During employment, the applicant attended one of these workshops, as well as directly speaking with her employer about her suffering mental health. Despite her employer being aware of the applicant’s struggles, and requests to be rotated out of the SSOU, the employer did not do so.

The Court ultimately held that the employer had been negligent in relation to providing a safe workplace, stating that employers have a duty to establish, maintain and enforce a safe system of work.

Key takeaways

This case makes it very clear that employers need to be actively taking positive steps to provide a safe workplace – particularly where there are known stressors – merely implementing a policy will not be enough.

It further emphasised that the responsibility is not on the employee to show signs of injury, but on the employer to be proactive in taking steps to avoid injury and minimise its risk – particularly where the stressors are known and objectively challenging. What will be considered as appropriate steps is dependent on the nature of the work and the role of the employee. The higher the stressors the higher the duty of care.

Employers must also be reactive when employees speak up about the impact that the work is having on their personal welfare and must not be oblivious to the warning signs of psychological injury in the workplace.

If your workplace has known stressors take these steps to minimise risks of mental ill-health:

• ongoing audits of stressor ‘hotspots’

• regular workshops and training to deal with the particular hazards and nuances of high risk work;

• flexible work arrangements – to recognise that sometimes a ‘break’ will break the ongoing pattern and allow tolerance and resilience to rebuild;

• regular one-on-one welfare checks – to allow prevention and remedial strategies to be implemented;

• promotion of the EAP – sometimes employees prefer to deal with outside parties rather than at work; and

• (if possible) rotating employees into different roles within a team or department – creating a pattern of work where the stress on the ‘horizon’ doesn’t appear ‘endless’ will be helpful.

  
  

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