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Friday Workplace Briefing

When does your obligation arise to intervene in psychological hazards?

Andrew Douglas and Nina Hoang will discuss the issue of psychological hazards and employers’ obligations to proactively prevent these hazards if they are reasonably foreseeable.

To view the full episode and catch up with the week’s latest news and developments please visit this link.

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About the Hosts

Managing Principal - Victoria

Senior Associate - Workplace Relations

Episode Transcript

Andrew Douglas: Okay, the big one for today. Major thing. All right.

Nina Hoang: Psychological hazards.

Andrew Douglas: Yeah, I want to talk about this. And Nina and I, it’s interesting I just did this presentation for Mates in Construction. Hi to those guys, by the way. And also to Debbie who retired, who’s not from there. G’day Debbie, I should say that.

Nina Hoang: Yeah, hi Debbie.

Andrew Douglas: What we’ve always talked about is Burke and Suncorp, and cases where you look at the nature in the the gradual decompensating behaviour of a person, as a result of psychological hazards.

Nina Hoang: Yep. Where there’s obvious signs that something’s wrong.

Andrew Douglas: And so you’ve got a Burke and Suncorp that said if a reasonable person can observe it under the obligations to monitor health, to try and performance manage the person would be wrong. Kubat says, yet, it has to be a reasonable person. All that sort of stuff.

Nina Hoang: Mm-hmm, yep.

Andrew Douglas: But what we’re seeing here is in the common law which will flow back into safety law. The High Court made a decision in Komesaroff that basically said this, if your workplace is inherently dangerous then you have a positive duty to intervene, not to wait what they called “sentinel symptoms.”

Andrew Douglas: Yeah. Now, Komesaroff was a case of a woman who worked in a sexual assault unit as a lawyer.

Nina Hoang: Yeah, in the DPP.

Andrew Douglas: DPP?

Nina Hoang: Yeah.

Andrew Douglas: And obviously was exposed to some fairly horrific stuff and became unwell. But nobody noticed that at the time. Ad what Komesaroff said is it doesn’t matter you don’t notice it. You place a person, you identify they’re in a hazardous environment you know it’s a high risk environment.

Nina Hoang: Yeah.

Andrew Douglas: Then the controls are a positive duty to ensure the person is safe, to rotate them, to check in on the person regularly, to do all those sort of things. And then we had Bersee which is the Victorian Court of Appeal case and maybe you can have a quick chat about that.

Nina Hoang: Yeah, so that one involved a teacher who hurt himself because his workload increased from 22 to 25 students. His stress and anxiety increased because of the increase in noise. And they said in that case, although it wasn’t a breach of the proactive duty to do with primary breaches. They did fail to say that because there wasn’t any signs there was nothing they should have done. Which isn’t correct at all.

Andrew Douglas: Yeah. So the County Court dismissed it on the basis of, “Look, nothing to see here.” “How can they intervene?” What the Court of Appeal said is, “Look, you’re not going to win because you are not, you’re not that damaged.”

Nina Hoang: Yeah.

Andrew Douglas: It’s the short answer and there’s no causation. But what the Court of Appeal did do is they gave real clarity around what Komesaroff, the High Court case means. And so they looked at an example and said, “Look.” And this shows you what an inherently dangerous workplace can be. It doesn’t have to be something as challenging as working in a sexual assault unit. It can be working in a school under intense pressures and changes in pressures. And, the thing is safety law says when you change the manner in which someone’s work you must consult and reassess the risk. Not dealt with, because common law lawyers don’t really understand safety. And the court wasn’t really addressed in that. But it’s very significant for safety law.

Nina Hoang: Yeah, it doesn’t make sense to me why it’s not well known because if you think about it, Andrew. If there is a physical hazard, if we have to do a risk assessment for anything, we always consider whether there is a hazard and put in controls to prevent the damage. Now, though, it seems like people are saying “No, just ‘cuz it’s a psychological hazard, let’s wait till someone is damaged and then deal with it.” Which doesn’t make sense because obviously psychological damage is long, more long lasting than physical damage.

Andrew Douglas: And we know the psych-

Nina Hoang: It doesn’t make sense.

Andrew Douglas: And we know the psychological hazards are around these things. They’re around the certainty. You know, certainty, exactly what you need to do. They’re around workload. They’re around increasing workload, not being given enough work. Being given work beneath or above what you’re doing, they are around-

Nina Hoang: Recognition.

Andrew Douglas: Recognition and reward.

Nina Hoang: So, work design.

Andrew Douglas: Yeah. So it is work design. So as you change the work design for someone, these are things you need to say, “Look, when I change that work design, do I inherently increase the level of risk to the person?” And if I do increase the level of risk, and this is what Bersee is saying-

Nina Hoang: Yeah.

Andrew Douglas: When I increase that level, I’m creating an inherently dangerous workplace.

Nina Hoang: Yeah.

Andrew Douglas: Okay? So it’s not, when you’re out working in a psychiatric unit in a place which has incredibly high stress and admissions. It’s not working, just working in a prison. It’s not the obvious places you think which are inherently high risk. It is as you change that work design.

Nina Hoang: Yeah.

Andrew Douglas: And there is a knowledge that adheres with a high level of risk.

Nina Hoang: Yep.

Andrew Douglas: There is this proactive duty to step in, identify the levels of risk that exists-

Nina Hoang: And put in suitable controls.

Andrew Douglas: And suitable controls. And one of those controls is checking in.

Nina Hoang: Yeah, but please don’t think that is the only thing you need to do. Like I think there is a common misconception with a lot of employers that says, look, I’ve said, you know, “how are you going?” They didn’t say anything, so it’s fine. I’ve done my due diligence. But that’s not the case. That’s not enough.

Andrew Douglas: Yeah.

Nina Hoang: And, look, this is what came out through our mock court too. That, “Oh, you know,” I said, “you know, are you okay?” And he didn’t say anything, so there was nothing more I could do.

Andrew Douglas: Yeah.

Nina Hoang: And it’s just not the case at all.

Andrew Douglas: So let’s set out what the principles of this are. ‘Cause I want to nail this, ’cause this is one of the most important safety cases this year. Psychological hazards are now understood. And they’re nothing more than determining whether you do everything that is reasonably practical in respect of work design. That’s it.

Nina Hoang: Yeah.

Andrew Douglas: And work violence, you know, sexual harassment, any form of aggression, those sort of things. But-

Nina Hoang: Work design is the big one.

Andrew Douglas: Work design goes to reasonably practical.

Nina Hoang: Yep.

Andrew Douglas: So, when we look at the way you work, are there psychological hazards that exist in work? When I change the manner in which I work, I necessarily create a hazard.

Nina Hoang: Yeah.

Andrew Douglas: Okay? So it is a trigger point that says, “Okay this is the beginning of reasonably practical. I must then determine the risk.” Now I can’t do that by just staring or thinking about it. I’ve actually got to go-

Nina Hoang: You have to do a risk assessment.

Andrew Douglas: A risk assessment. And the obligations under safety law is when I do the risk assessment is to consult with the affected person.

Nina Hoang: Yeah, ’cause how else would you know?

Andrew Douglas: That’s right. But, do you notice in psychological hazards, no one does that.

Nina Hoang: Yeah.

Andrew Douglas: So I say to Nina, “Look I’m going to need you to work on Saturday as well.”

Nina Hoang: Yeah.

Andrew Douglas: And Nina looks at me and goes, “No.” But if I did, I’d have to say, “Okay Nina can you do this for this next two weeks? And what is it going to look like for you? What are things you’re going to miss out on? We’re going to have to do an assessment of whether it’s viable.

Nina Hoang: Yeah, by talking to me, not just doing it in your head. Like, “Oh I’ve accounted for this and for that.”

Andrew Douglas: So once I’ve determined what the risks are then I must have a set of controls. Now these things like the new Queensland Industrial Relations legislature, you better document it. And here, because certainty is such a key issue in psychological hazards. Once I’ve had that discussion with Nina, I say, “Okay, this is for this period of time. This is what we’re going to do and this is how we manage it.” So Nina knows how I’m going to support her. Which is I might say, “I’m going to drop in and catch up with you once a week and see how we’re going. Let’s look at where the noise is going. I’ll see if I can get a teacher’s aide to come and help and take some kids away.”

Nina Hoang: Yeah.

Andrew Douglas: Like there’s some obvious things that you can do about it, but the check-ins are really important. That’s what Bersee and that’s what Komesaroff are about. And yes, they apply to common law, but this is a positive duty to intervene. And it’s really nothing more than an explanation of what the safety law already requires, which is when I place someone in a position of inherent risk by the change in the nature of work or the nature of the work itself. At that stage I have a positive duty, not only to monitor health, but to ensure the workplace is actually safe in the beginning. So that’s how they interact. So great piece of law, I’m really pleased it’s come through. Great that the common law are gradually catching up with safety law. But better still for us to inform how safety law actually works. And we’ll see that played out in the problem that we’ve got up ahead. So let’s go to the problem, Nina.

Nina Hoang: Okay. Alice was offered a job with, Famreach?

Andrew Douglas: Yeah, Famreach, I did that.

Nina Hoang: What a weird name-

Andrew Douglas: I made it up.

Nina Hoang: …Incorporated, a not-for-profit funded by state government to deal with family abuse. Clients referred to them, almost always women, who had suffered domestic violence and sexual abuse.

Famreach prided itself on diversity and embedded a quota that 40% of outreach workers must have lived, must have lived experience. Alice was made an oral offer of employment. The offer was certain in respect of her hourly rate which was around 26% above the award.

She initially worked 38 hours a week. Her job was to partner with the police, ambulance, and CATT teams supporting harmed women in the north of Melbourne. She had to find them safe lodging and support networks to make them safe. There was no rotation of work.

Her social work supervisor, not her work supervisor, but both were employed by Famreach, found her a calm and resilient woman. Her immediate work supervisor found her reliable but found she struggled to read and record histories. When asked why, she said that reading the detail triggered her own trauma. Her supervisor counselled her that she must, or she may lose her job. It was a core requirement of her role.

Over the next few months, she took time off, worked half days, and Famreach paid her for the work she did. After a formal warning two months later about record keeping. They said they wouldn’t offer her any more shifts as she was a casual worker.

Andrew Douglas: All right. Well look, here’s the first question. If Alice brought an unfair dismissal claim saying she was a permanent employee. Would she succeed given she was paid sick leave? She was on permanent roster on full-time worker. The job she applied for was a permanent job. Her flexibility of attendance was requested by her, the business permitted and didn’t pay her any extra loading.

Nina Hoang: So you gave it away in the question.

Andrew Douglas: Did I?

Nina Hoang: Yeah. There’s so many indicators that she’s a permanent employee.

Andrew Douglas: Let’s go back to the analysis, okay. ‘Cause, this is personnel contracting. Was there an offer of employment at the time? And the answer to all this is actually there was. So she applied for a job which was a permanent job at the time she applied for it and it had a wage.

Nina Hoang: Yeah.

Andrew Douglas: That’s it.

Nina Hoang: Yeah, that’s clear.

Andrew Douglas: But, if it wasn’t. And the court said, that I’d need more. What the most recent case by said, well you’d have to actually look towards what are the post-time of offer and acceptance to determine were there times that would imply a contract of employment, permanent employment. And the bottom line is, so this question is really is, did she, was she a regular or systematic casual? So that’s another part. Or was she in permanent employment for the purpose of unfair dismissal? ‘Cause otherwise she would be excluded from making an unfair dismissal claim. The answer for that, that jurisdictional test is, she was definitely one or the other without a doubt.

Nina Hoang: Yeah.

Andrew Douglas: So she could, but more importantly, it shows how complex this gets. Okay, and it also shows, the reason I’ve done this question is to show how silly you get trying to analyse it. When in fact the first question is, if I offer you permanent employment and you accept it at a set rate. That has sufficient certainty in law to be the contract. So you don’t have to consider all the rest of it.

Nina Hoang: Yeah.

Andrew Douglas: So it was definitely, it was definitely an unfair dismissal because they started to treat her as a casual.

Nina Hoang: Only at the end when they wanted to get rid of her, yeah.

Andrew Douglas: Which bleeds into the second question. Because the second question is, would Alice have successful General Protections claims if she alleged she was treated adversely for requesting flexible work because of mental health, with mental health being a protected attribute in its own right. And she raised safety concerns about record keeping. But to be perfectly honest, she had a workplace right to be treated as a permanent employee. That’s the first thing.

Nina Hoang: Yeah, so she was able to win that.

Andrew Douglas: Yeah, so she was able to actually launch the General Protections based on the misclassification of her employment and mistreatment. But I think the answer is-

Nina Hoang: Yeah, I mean, mental health is considered a protected attribute under disability. She raised a complaint about her employment. They’re clearly discriminating against it. Like she would definitely-

Andrew Douglas: Well that’s the difficulty. So here’s a person, and this is, cuts to one of the most complex pieces of law around discrimination, which I forgot to warn you about before we started doing this. Which is if a person can’t do the inherent requirements because they suffer from a protective attribute it doesn’t mean you can’t terminate their employment. The issue is can you make reasonable adjustments around it?

Nina Hoang: But they haven’t even done that assessment.

Andrew Douglas: No, they’ve done nothing. They’ve done nothing at all.

Nina Hoang: So they wouldn’t have been able to succeed on that anyway.

Andrew Douglas: Yeah, not at all. Not at all.

Nina Hoang: You have to do an IME and say she wasn’t fit for work.

Andrew Douglas: And this is interesting because in social work it’s very common to hire people with lived experience so that they can connect with people. Which means you are taking people with previous history of mental health to look after people with mental health. And it’s incredibly successful.

Nina Hoang: Really?

Andrew Douglas: But the issue –

Nina Hoang: I would have though that it’s exposing them to more trauma.

Andrew Douglas: Well, that’s exactly the question. But that means they have lower resilience and higher levels of risk. And so the Komesaroff issue comes back in and says well then how do I care for these people-

Nina Hoang: How do you put controls in place, yeah.

Andrew Douglas: Okay, and I think that’s dangerously into the third question which is, would Famreach have safety and common law risk around psychological hazards given she obliquely raised her mental health.

Nina Hoang: I think she very clearly said that she had mental health issues and they were triggering her. So, yeah.

Andrew Douglas: So, I think-

Nina Hoang: Even, like you said, even before she raised that. They should have had controls in place knowing her history and having just done a risk assessment about work.

Andrew Douglas: I think when someone tells you, A, I have lived experience. B, reading these records triggers me and creates mental health issues for me-

Nina Hoang: That’s very high risk.

Andrew Douglas: Then you direct them to do it and don’t find another method of doing it.

Nina Hoang: And threaten their employment at the same time!

Andrew Douglas: I think you’ve got a lot of trouble. So that’s how Komesaroff’s will play in. And can you see now how psychological hazards, how I allocate work, how I require work to be done, is such a feature of the way the world will be under safety law in the next few years. In a way we’ve never looked at it before. Now if Alice, question four, if Alice made a psychological injury worker’s compensation claim after being directed to record keep, would she have been successful? So let’s start again. We know that here work was triggering a mental health issue.

Nina Hoang: Yeah, so it’s directly related to her employment.

Andrew Douglas: Now remember there is two different tests in worker’s compensation. She came in with a mental health issue and therefore work has to be the substantial cause.

Nina Hoang: And exacerbated, yeah.

Andrew Douglas: Yeah. So we’ve got that. So now that we have a valid mental health claim. The next thing is, okay, she’s got it, work caused it. Was there any form of reasonable management action set around the record keeping? Now it’s not unreasonable to require someone to comply with a core part of a business. Okay?

Nina Hoang: Yes, but also when someone raises a concern wouldn’t it be requiring them to do their job with controls in place to protect them?

Andrew Douglas: Well, there’s two parts of this. So if you accept that it creates a mental health issue for the person. And that’s a protected attribute, as Nina said. The next question is, is there an adjustment that can be made? Never thought through.

Nina Hoang: Yeah.

Andrew Douglas: But secondly, the idea that you can just summarily dismiss someone, ’cause that was the real-

Nina Hoang: That’s not reasonable management.

Andrew Douglas: That’s not reasonable management action anyway. Remember, reasonable management action has two-

Nina Hoang: Well, they gave her a warning as well. And then fired her. That’s true. But there’s two fairness tests. Okay, the first one is, is the manner in which you are having the discussion with the person fair? Well, actually the trigger for doing it was fair, but the manner in which it was done was not fair. And then was the disposition or were the end result fair? And the answer is, no. So, although it was right and fair to commence the discussion. The manner in which the discussion was commenced, failing to look at the discriminatory base, make reasonable adjustments.

Nina Hoang: Or do a risk assessment, yeah.

Andrew Douglas: Do anything at all about it, blah, gone. So the answer is, she’d have a very successful claim. But the problem with this successful claim is, um, it’s unlikely she’s going to come back to work. And therefore the premium impact on this is incredibly significant. Wherever you are in Australia if you are a 5 million remuneration business, um, you are looking at nothing short than three to 400,000 as a minimum premium over the life cycle premium, up to a million dollars, depending which state you’re in.

Nina Hoang: Wow.

Andrew Douglas: So in Victoria, in a high risk area, you could be up to as much as a billion dollars for that. So-

Nina Hoang: And if they had only done the risk assessment.

Andrew Douglas: If they’d only gone back to the fundamentals. And that’s what I guess what we are here today talking about. If you go back to the fundamentals, which is someone identifies a hazard.

Nina Hoang: Then you intervene.

Andrew Douglas: Yeah, you say, “What is the level of risk?” What are the controls? Now in discrimination law, you’ve got the risk. Okay?

Nina Hoang: Yeah.

Andrew Douglas: So, one of the controls there is what are the adjustments you as an organisation, as a matter of law must make? So they can do the inherent requirement of the job. Or can’t you provide reasonable adjustments to do the inherent requirements of the job? There are no ones that could be, which would be reasonable. None of that assessment’s been done here.

Nina Hoang: Yeah.

Andrew Douglas: All right, Nina, that’s an interesting week.

Nina Hoang: Yeah.

Andrew Douglas: Challenging week. And, um, next week who knows what we’re going to be doing? But there is, I think, next week the $2 million fine is going to be a major part of this, the scaffolding fine that came out this week. I haven’t a chance to read the judgement to see how relevant it is.

Nina Hoang: A big one, yeah.

Andrew Douglas: But this week we had a $2 million fine for a fall from scaffold.

Nina Hoang: I think we’ll probably see a couple more slip through before the end of the year, I think.

Andrew Douglas: Yeah. And our last one is on the 16th this year. So we’ll see you next week.

Nina Hoang: Thanks for tuning in.

Andrew Douglas: Cheers, bye bye.

Nina Hoang: Give us a thumbs up!

Andrew Douglas: Yeah, thumbs up. A real thumbs up, okay.

Check this next

In this week’s Friday Workplace Briefing, Andrew Douglas and Nina Hoang discuss the discipline process; how to get it right and importantly how to avoid it going very wrong. To view the full episode and catch up with the week’s latest news and developments please visit this link.