High Court finds employer failed to enforce a safe system of work

The High Court recently decided in Kozarov v Victoria (Kozarov)¹ that some work, by its very nature, puts an employer on notice that an employee may suffer a psychiatric injury as a result of performing the work.

Being on notice of such risks results in an employer being duty-bound to protect an employee's mental health.² The duty requires the employer to take reasonable steps to manage the work allocated to employees (which may require the employer to stop allocating particular work to an employee and/or rotate the employee out of a team).

Where the nature of the work performed puts an employer on notice of a risk to psychological health, the duty exists irrespective of whether the employee raised concerns with management or showed "evident signs" of mental health concerns.

Decision in Kozarov

In Kozarov, the High Court accepted that the employee's work was "inherently and obviously dangerous" to her psychological health: the employee was responsible for prosecuting serious sexual offences for the Office of the Director of Public Prosecutions. The nature of this work put her employer on notice that she could suffer a psychiatric injury from doing the work.

This finding was supported by the fact that the employer had published a policy on how to manage vicarious trauma ─ although at least one judge (Justice Edelman) made it clear that the duty would have existed without the policy.³

Where a duty exists, the High Court stated that an employer must use its powers as an employer to enforce a safe system of work. This requires an employer to do "almost everything" to minimise the risk of a psychiatric injury.⁴

In Kozarov, the employer breached the duty by failing to:

• train staff about the cumulative impacts of vicarious trauma and how to identify "red flags"
• enquire into Ms Kozarov's welfare or offer her occupational screening; and
• have a system in place to implement the findings of any occupational screening

One judge (Justice Edelman) accepted that the duty may require rotating an employee out of a team. His Honour observed that employers sometimes require employees to rotate out of teams due to physical injuries. Psychiatric injuries are no different.⁵

Lessons for employers

This decision is consistent with the increasing recognition in health and safety law that employers should proactively identify, assess and minimise risks to employees' mental health and monitor the controls put in place in response to the risks.

Specific guidance on systematic approaches to psychosocial hazards is available in:

• Safe Work Australia's Work-Related Psychological Health: A Systematic Approach to Meeting Your Duties (National Guidance Material)
• the New South Wales Code of Practice on Managing Psychosocial Hazards at Work
• Western Australia's Code of Practice: Psychosocial Hazards in the Workplace

Notably, Victoria has recently released exposure draft regulations for comment. If implemented, these regulations will require employers to:

• identify and control psychosocial hazards
• review control measures
• have a written plan to prevent psychosocial hazards (where such hazards are identified)
• report on any complaints involving aggression or violence, bullying and/or sexual harassment⁶

The decision in Kozarov makes it clear that when an employer engages in the process of identifying psychosocial hazards in its workplace, it should recognise that some roles may involve work that is inherently dangerous to an employee's mental health (irrespective of whether an employee shows evident signs of mental health concerns).

Examples of other roles that may present similar risks to an employee's psychological health include roles that involve exposure to:

• abuse and violence: such as first responders, disaster and emergency services personnel and defence personnel
• vicarious trauma (e.g. witnessing or investigating serious injuries or fatalities): such as child protection workers, lawyers, police officers, forensic scientists, journalists and custom officers⁷

The more heightened the exposure, the more steps an employer will need to take to manage risks to psychological health. Amongst other factors, a risk may become more heightened where the employee's conduct presents a "red flag" to management.

Where there is a high risk of a psychiatric injury, it may be necessary to "force" an employee to rotate out of a team.

General complaints about workload

Two judges (Chief Justice Kiefel and Justice Keane) made it clear that complaints about workloads in "ordinary workplaces" do not necessarily require an employer to make enquiries about an employee's mental health.⁸ Adopting a systematic approach to psychosocial hazards will enable employers to assess whether such complaints require a higher-level response, or can be dealt with at a lower level.

Reach out to Lander & Rogers' Workplace Relations & Safety team if you would like further information about this decision or managing psychosocial risks in the workplace.

¹ Kozarov v Victoria [2002] HCA 12 (13 April 2022)

² Or the duty to ensure the "[p]rotection of mental integrity from the unreasonable infliction of serious harm" - see Tame v NSW (2002) 211 CLR 317.

³ Kozarov at paragraph [107].

⁴ Kozarov at paragraph [83].

⁵ However, in relation to rotations out of teams, the High Court did not have a unified view: Chief Justice Kiefel and Justice Keane stated that the duty required the employer to do everything it could to minimise the risk of psychiatric injury short of forcing a rotation out of the unit (see paragraph [83]).

⁶ More detail regarding the exposure draft regulations is available at: https://engage.vic.gov.au/proposed-psychological-health-regulations.

⁷ These examples are referred to in the National Guidance Material (page 12).

⁸ Kozarov at paragraph [15].

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