An employee has been awarded $435,000 in damages after the High Court ruled the employer had failed to fulfil its duty in managing psychosocial risks. The details and insights from this are below.
Details of the case
- Zagi Kozarov, a solicitor in the Specialist Sexual Offences Unit, developed PTSD and depression through her work. Zagi did not inform her employer of this as she feared it would hinder her chances of a promotion.
- Zagi left the role and sued the State of Victoria for negligence. The employer argued they couldn't act on something they weren't aware of.
- The High Court decided the employer breached its duty of care as the risk was foreseeable and should have been managed regardless.
- The unenforced Vicarious Trauma Policy was a key component of the case as it highlighted awareness of the risk but failure to manage it.
Key insights from the case
There are three key insights for employers:
- Silence and ignorance aren't shields against foreseeable risks.
- Policies without enforcement are a liability.
- The strongest defence for employers is evidence of action.
One of the key comments from the judge was that the risk was reasonably foreseeable. Therefore, it had to be managed, even if it wasn't reported. The judge highlighted it might even be necessary to override an employee's preferences in place of safety in this case.
With model codes of practice, positive duty and growing research in the psychosocial safety space, it is becoming increasingly harder to defend inaction by claiming a lack of awareness of the risk. The hazards outlined in Safe Work and Comcare could all potentially be considered foreseeable risks now.
In response to this, workplaces are adding and updating policies around psychosocial risk management. This is necessary but this case highlights that without action, it won't help your defence and may even hinder it. In the image below, the judge highlights the policy as evidence of awareness of risks.
In the end, the best defence for employers is evidence of action. And, conversely, the biggest risk is inaction. If you are unsure of what action to take we have a psychosocial risk check-list designed in collaboration with regulators for you. Just fill out this form and we will send it to you.
One of the actions workplaces must take is to consult workers on psychosocial risks. There's a dilemma we've seen leaders share. "Consultation is time consuming and if I uncover risks, I'm liable if I don't act. If I don't consult, I'm also liable." There are two key tactics to help avoid this dilemma by removing the time it takes and the difficulties of taking action. If you're interested in these tactics, feel free to speak with a specialist here.
A few questions to consider to close off:
- Are we enforcing our psychosocial risk policy?
- What would our evidence of action look like if a regulator arrived tomorrow?
- What would our workers tell a regulator about being consulted on psychosocial risks?
Thank you for reading and we hope you found this case insightful.
