Content warning: please be advised that this alert contains content about suicide.
On 19 October 2023, the Melbourne Magistrate’s Court fined Court Services Victoria (CSV) nearly $380,000 in relation to a toxic workplace culture and a range of psychosocial hazards that contributed to the suicide death of an employee lawyer at the Coroners Court of Victoria. CSV was also ordered to pay $13,863 in costs.
This decision underscores the potential harm to employees, and the legal consequences for employers, of failing to comply with the duty to provide and maintain a working environment that is safe and without risks to health, including psychological health.
Material facts
The Court heard that from 2015 to 2018, Coroners Court workers were placed at risk from hazards including exposure to traumatic materials, role conflict, high workloads, excessive work demands, poor workplace relationships and inappropriate workplace behaviours.
According to WorkSafe Victoria, this led to numerous complaints of bullying, verbal abuse, derogatory comments, intimidation, invasions of privacy and threats to future progression. Many workers reported feelings of anxiety, traumatic stress, fear and humiliation, and took long periods of sick leave.
In September 2018, the Coroners Court principal in house lawyer died by suicide after being diagnosed with a work-related major depressive disorder. She had been required to perform three roles, worked long hours daily, and expressed concern about the impact taking leave could have on her professional reputation.
While it was evident to many at the Coroners Court that she was deeply distressed and physically unwell, at least two managers wrongly attributed her symptoms to personal issues. No changes had been introduced to address her excessive workload.
Outcome
The Court emphasised that all employers have an obligation to ensure, so far as reasonably practicable, that workers are not exposed to risks to their psychological or physical health and safety. CSV admitted it failed to take any adequate steps to identify or assess psychosocial risks to the health of employees, and ultimately failed to address the toxic culture at the Coroners Court. CSV pleaded guilty to breaching the Occupational Health and Safety Act 2004 (Vic) (the Act) by failing to provide and maintain a safe workplace. The Court convicted CSV and issued a fine of nearly $380,000.
What does this mean for you?
This case serves as a warning to employers and persons conducting a business or undertaking (PCBUs) to review their existing psychosocial hazard and risk management models. Importantly, employers must adequately identify psychosocial as well as physical hazards in the workplace and conduct appropriate risk assessments to protect the psychological health and mental wellbeing of its workers.
Health and safety regulators around the country are increasing their investigative and enforcement activities in relation to how employers and PCBUs are managing psychosocial hazards in particular.
This case was heard and determined in the Magistrate’s Court, impacting the scale of penalty available. However the failure to comply with the duty to provide and maintain a working environment that is safe and without risks to health currently attracts a maximum penalty of more than $1.73 million. Victoria’s health and safety legislation now also includes the offence of workplace manslaughter: negligent conduct that breaches a relevant safety duty and causes death can lead to a penalty of over $19 million and imprisonment for up to 25 years.
Where to from here?
Guidance is available. For example, the Safe Work Australia Model Code of Practice 'Managing psychosocial hazards at work’, recommends that employers and PCBUs should:
- regularly identify and assess issues of workload, job demands and exposure to difficult material, and make appropriate changes;
- accurately differentiate work-related distress from personal distress and implement measures to reduce distress;
- review policies, procedures and practices in place which prevent and respond to inappropriate workplace behaviours including bullying, sexual harassment, violence, and aggression;
- drive initiatives and programs that foster inclusivity, diversity, and work-life balance;
- support employees to thrive in their roles, inform them of their entitlements if they become unwell, encourage them to take regular periods of leave to unwind, and work to eliminate employee feelings of guilt about taking time off;
- facilitate a culture where employees feel supported to speak up about workplace issues, including by assessing the current mechanisms for raising concerns related to psychosocial health and safety;
- consult with employees who are, or are likely to be, directly affected by a psychosocial hazard, such as through worker surveys and toolbox discussions; and
- promote a positive workplace culture that encourages respectful behaviours.
Generally, the expectation is that larger organisations with more resources, must do more to create and maintain a positive culture and healthy and safe working environment.
This tragic case provides a confronting reminder that organisations are responsible for providing a safe workplace, and the consequences of failing to do so can be devastating. Now is the time for organisations to ensure the effectiveness of their existing frameworks for identifying, assessing, controlling and monitoring psychosocial hazards in their workplaces, including by consulting with their workers, and prioritise implementation of any required safeguards.
Please reach out to your KWM contact if we can help.
