Worksafe’s watchful eye: Employers on notice regarding psychosocial health and safety risks
WorkSafe Victoria (WorkSafe) has successfully prosecuted the body responsible for management of Victoria’s court system, Court Services Victoria (CSV)( over its failure to provide a safe workplace which resulted in the death of a senior lawyer of the Coroner’s Court.
On 19 October 2023, CSV pleaded guilty to one charge of failing to provide a safe workplace. The Court found that CSV’s failings were at the highest end and awarded the maximum penalty against CSV, including ordering that CSV pay WorkSafe’s legal costs.
Background to trial
CSV was charged in 2021 with one count of failing to provide or maintain a workplace that was safe and without risks to health (section 21(1) of the Occupational Health and Safety Act (Vic) (OHS Act)).
At trial in September 2023, it was alleged that CSV breached section 21(2)(a) of the OHS Act by failing to provide and maintain an adequate system of work to reduce the risk of workplace related stress and psychological injury, including anxiety and depression, in the Coroner’s Court.
The Court found that the Coroner’s Court (and CSV by extension) was on notice about the health and safety risks (including the risk of suicide) after a 2015 staff survey and internal emails which revealed that its workplace was toxic.
CSV admitted that it had failed to identify or assess the psychological risks to the health and safety of its workers between December 2015 and September 2018, despite repeatedly warnings. The Court heard that the workplace was a toxic working environment due to workers exposure to traumatic material, inappropriate workplace behaviour, excessive workload demands, with no support.
The Court heard further that workers had made multiple complaints to management, including allegations of bullying, verbal abuse, intimidation, invasion of privacy. A number of workers throughout the three-year period reported feelings of anxiety, post-traumatic stress disorder, fear and humiliation.
Tragically, in September 2018, Senior Legal Counsel at CSV, Jessica Wilby died of suicide. In the months leading up to her death, she told friends and family that she had been given the workload of two people and had expressed concern about the impact that taking leave would have on her reputation. While the charges did not specifically relate to Ms Wilby’s death, they encompassed a period during which she was employed by CSV.
Outcome at trial
CSV pleaded guilty to the charge and, on 19 October 2023, was sentenced for its failure to properly identify and assess risks in relation to the psychological wellbeing of workers.
The Court found that the offending was a serious breach of workplace health and safety laws, saying ‘the gravity of the offending is significant as is the culpability and degree of responsibility’ and that the lives of many workers had been ‘put at risk’ by CSV’s failure of to protect its workers from harm.
CSV was convicted and fined $379,157, and ordered to pay $13,863 towards WorkSafe’s legal costs.
Outcome for employers
The legal landscape regarding workplace health and safety has evolved significantly in recent years. Employers are increasingly expected to recognise and address psychosocial risks to health and safety, just as they do physical risks.
The Court awarding the maximum penalty against CSV demonstrates that employers cannot ignore their responsibility to provide a workplace free from risks to health and safety, and that this includes mental health. Employers must be constantly vigilant about the risk of psychological injury in the workplace and implement measures to monitor mental wellbeing.
While everyone in an organisation has a role to play in creating a healthy and safe environment, the development of a positive culture and implementation of appropriate risk control measures requires leadership from management. This case sends a clear message to employers that shirking their legal responsibilities regarding psychosocial health and safety will not be tolerated by Courts and they will face stiff penalties for contravening the law.
As set out in our Limebite on Managing psychological health and safety at work: the guidance provided by each Australian state and territory, to reduce the risk of work-related mental injuries, employers should:
- Promote a positive workplace culture that encourages trust, respectful behaviours and quality communication
- Consult with workers when identifying and assessing any risks to their psychological health and determining the appropriate control measures
- Implement policies and procedures for reporting and responding to psychosocial hazards such as workplace trauma, bullying, interpersonal conflict, violence and aggression; and reviewing and updating risk controls following any incidents
- Regularly ask workers how they are, encourage them to discuss any work-related concerns and, where required, implement suitable support and controls
- Have systems in place for workforce planning and workload management to ensure that workers have sufficient resources and a realistic workload
- Develop skills for leaders through coaching, mentoring and training to improve the support of workers
- Seek and act on feedback from workers during any organisational change process
- Inform workers about their entitlements if they become unwell or unfit for work
- Provide appropriate and confidential channels to support workplace mental health and wellbeing, such as Employee Assistance Programs, and encourage workers to use them
Note: Help is available via Lifeline on 13 11 14 and Beyond Blue at 1300 22 4636.
This publication constitutes a summary of the information of the subject matter covered. This information is not intended to be nor should it be relied upon as legal or any other type of professional advice. For further information in relation to this subject matter please contact the author.
Level 4, 41 Currie Street
Adelaide SA 5000
+61 8 8215 7000
Level 4, 157 Ann Street
Brisbane QLD 4000
+61 7 3157 1900
Level 22, 114 William Street
Melbourne VIC 3000
+61 3 9611 8800
Level 8, 221 St Georges Terrace
Perth WA 6000
+61 8 9476 3800
Level 24, 6 O’Connell Street
Sydney NSW 2000
+61 2 8240 8000