What is the employer’s duty of care?
Employers have a duty under workplace health and safety legislation, including the Occupational Health & Safety Act (2004) (Vic), to provide and maintain (as far as is reasonably practicable) a safe workplace. In addition, employers have a duty to monitor the health of their employees. Criminal prosecution, penalties and potentially imprisonment can result if these statutory duties are breached.
Employers also have a duty of care at common law to take reasonable care not to harm their employees where there is a “reasonably foreseeable” risk of injury. A failure to meet this duty of care can result in significant damages awards if the employer’s negligence caused the employee to suffer an injury1.
Employees also have a statutory and common law duty to take care of their own safety and that of others affected by their conduct, and to co-operate with their employer’s OHS compliance measures
The above statutory and common law duties extend to risks to employees’ psychological safety, as well as their physical safety. In the context of managing mental health issues in the workplace, an employer’s duty can extend to:
- employees who are subjected to workplace bullying (or other inappropriate behaviour which creates a risk to health or safety);
- employees who are the subject of a workplace bullying complaint or other workplace investigation, or may be a participant in an investigation (eg witness or support person); and
- co-workers of an employee with a mental health condition who may be affected by behaviour which is a manifestation of the employee’s disability (eg violence or aggression).
To be found to have breached the duty of care, the risk of psychiatric injury must be ‘reasonably foreseeable’ and not ‘far-fetched or fanciful’. However, employers must take employees as they find them which means that conduct which could not reasonably be foreseen to cause risk for one employee may be for another (the ’egg shell skull rule’).
What are your obligations where employee vulnerability is known or reasonably apparent?
As the following cases illustrate, where it is known by or reasonably apparent to an employer that a particular employee is vulnerable, the duty of care is likely to arise. Employers may be considered to be ‘on notice’ about an employee’s fragile mental state even if the employee has not disclosed any diagnosed illness.
Wearne v State of Victoria2
Ms Wearne, a Department of Human Services (DHS) case manager, was awarded $625,000 damages for psychological injury caused by conduct that did not constitute bullying, but was nonetheless inappropriate.
Ms Wearne had previously made a stress-related workers’ compensation claim. She returned to work in a different location reporting to a different supervisor. Soon after doing so, she raised allegations of bullying against her new supervisor.
The Court found that DHS was aware of Ms Wearne’s vulnerability by reason of her previous workers’ compensation claim and was also aware that she was under strain due to her poor relationship and interpersonal conflict with her supervisor. DHS was therefore under a duty to take reasonable steps to reduce the risk of Ms Wearne suffering psychiatric injury.
The Court went on to find that DHS breached its duty of care by failing to do one or more of the following:
- formally investigate the cause of the friction between Ms Wearne and her supervisor,
- formally counsel Ms Wearne and her supervisor about their behaviour towards each other,
- develop an early intervention plan for workplace stress for Ms Wearne,
- train her supervisor in how to deal with an employee with a psychological condition,
- arrange mediation to seek to resolve the conflict and/or move Ms Wearne to another team.
Keegan v Sussan Corporation3
Ms Keegan, an Assistant Manager, was awarded $240,000 damages for psychological injury in addition to workers’ compensation payments already received due to what could be described as ‘low-level’ bullying over a very short period.
During Ms Keegan’s absence on parental leave, a new manager had been appointed. Within three days of Ms Keegan’s return from parental leave, she raised concerns with a manager in Head Office regarding her new manager’s treatment towards her, including unwarranted criticism and speaking aggressively to her.
The Head Office manager said she would speak to Ms Keegan’s manager but after doing so Ms Keegan noticed that her manager’s treatment of her worsened. Ms Keegan reported this and was told to ‘put some lippy on and go home to her bub’ and, when the behaviour further worsened, she was told to ‘work it out for herself’.
The Court found that by Ms Keegan making the initial complaint, Sussan was on notice that if her concerns were not dealt with appropriately it was reasonably foreseeable that Ms Keegan would suffer psychological injury. It found that Sussan failed in its duty as it did not follow its own bullying/complaints policies, it trivialised the employee’s concerns and offered patronising advice.
Hayes v State of Qld4
This decision concerned a lengthy bullying investigation which was conducted in a very hostile environment. The complainants were supported by an active union and considerable hostility was directed towards the respondent managers who were the subject of the bullying complaint (which was ultimately found to be unsubstantiated).
The Court found the employer had a duty of care towards the managers who were the subject of the complaint as it was reasonably foreseeable they could suffer a psychological injury. In failing to provide appropriate support to them during the investigation process, the employer failed in its duty of care5.
Tips for Employers
- Consider what support structures/tools you have or should have in place to identify and manage risks associated with mental health issues in the workplace (eg policies, complaints mechanisms, Employee Assistant Program, line manager training, Mental Health First Aid Training);
- Ensure that when complaints are made (including informally/verbally) they are taken seriously, acted upon in accordance with your policies and are not trivialised;
- Ensure that managers are trained to identify signs that an employee may be at risk or particularly vulnerable and respond appropriately; and
- Ensure that both complainants and respondents to a workplace investigation are also provided with appropriate support and kept informed about progress.
If you would like advice or assistance with managing mental health issues in the workplace, please contact a member of our Workplace Relations team.
1 Note that employers other than self-insurers are not responsible for payment of common law damages orders as they form part of the relevant workers’ compensation scheme. Most State schemes (including Victoria) have a minimum impairment threshold and some States have damages caps. Generally by the time a common law damages claim is determined the claim is no longer premium sensitive.
2  VSC 25
3  QSC 64
4  QCA 191
5 Ultimately the employer was not found to be responsible for the psychological injury suffered by the employees due to other contributing factors.
©2019 Rigby Cooke Lawyers
Disclaimer: This publication contains comments of a general nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional advice. No responsibility can be accepted by Rigby Cooke Lawyers or the authors for loss occasioned to any person doing anything as a result of any material in this publication.
Liability limited by a scheme approved under Professional Standards Legislation.