Failure To Implement Mental Health Policies Affecting Safety At Work - An Employer’s Duty Of Care

In April 2022, the High Court heard a case concerning the mental health of an employee and the employer’s duty to their employee. In Kozarov v State of Victoria, Ms Kozarov suffered post-traumatic stress disorder because of the type of cases she dealt with as part of the Victorian Office of Public Prosecution’s Specialist Sexual Offences Unit. She sued the Office of Public Prosecution (OPP) because they had failed their duty of care and the case ended up before the High Court.

What is an employer’s Duty of Care?

An employer’s duty of care is the legal obligation an employer has to their employees to provide a safe working environment. For an employer to provide employees with a safe working environment, it is not enough to just ensure the employee’s physical safety, employers must uphold the employee’s mental wellbeing, as failing to do so could give rise to legal action against the employer if an employee suffers a psychiatric injury. 

High risk workplaces

Ms Kozarov began working for the Specialist Sexual Offences back in June 2009. She was diagnosed with PTSD in February 2012 because of the cases she had been handling, which included cases of child rape and other offences of gross depravity. She was later diagnosed with strong depression, which had been caused by her PTSD. These conditions negatively affected her daily life. While the Office of Public Prosecution had Employee Assistance Programs in place, most notably, given the nature of the material employees were exposed to, that employees be rotated every two years. However, Ms Kozarov’s managers were unfamiliar with their extensive vicarious trauma policy and none of the protective measures identified in the policy were implemented. This failure to implement the policy is damning as the purpose of the policy was to protect employees from mental health risks, and that OPP was aware of these risks and had created the policy to prevent them. This failure to implement the policy resulted the OPP not offering occupational screening to her which would have identified the vicarious trauma.

The High Court found that the Office of Public Prosecution (OPP) had been informed about Ms Kozarov’s deteriorating mental state seven months before she was diagnosed with PTSD. Previously the OPP had claimed they had only been made aware of her deteriorating mental state after the PTSD diagnosis. After being informed of her PTSD, the OPP attempted to find a role for Ms Kozarov internally that didn’t deal with sexual violence however they were unsuccessful.

Ms Kozarov continued working in the Specialist Sexual Offences Unit for three more years. Toward the end of her time with the OPP, she took a period of leave to try and heal mental state. However, she left the OPP after multiple attempts to create a return-to-work plan that would cause further deterioration of her mental state failed. She then brought legal action against the OPP for negligence as they had failed in their duty of care to her. She also argued that the OPP was in breach of contract as she had suffered psychiatric injury while in their employ and this was a reasonably foreseeable risk given the sort of cases she was handling.

The Importance of Effective Policies

The OPP had existing policies in place designed to handle employees who had suffered vicarious trauma because of the nature of their work, however, to change roles, Specialist Sexual Offences Unit employees were required to apply for advertised internal roles. This was in stark contrast to SSOU policy which provided that SSOU employees should be rotated out of the SSOU into roles within the Victorian Office of Public Prosecution every two years. The purpose of this policy was to limit an employee’s exposure to potentially traumatic material and to reduce the risk of vicarious trauma.

In 2017, Ms Kozarov was awarded damages by the Supreme Court of Victoria, but the decision was overturned by the Court of Appeal in 2020. However, when the case was taken to the High Court of Australia, the Court chose to uphold the Supreme Court’s original decision and awarded Ms Kozarov $435,000 in damages. The core reason behind the High Court’s decision was that the Court of Appeals had made an error in finding there was no clear link between the OPP’s breach of their duty of care to Ms Kozarov and the psychological injuries suffered by Ms Kozarov.

Key takeaways for employers

This case highlights the need to not only have policies in place for mental health, trauma etc, but also the need to follow through on those policies. One of the key facts that worked against the OPP was that while they had the policies in place, their failure to implement them meant that they failed to prevent psychiatric injury and had failed their duty of care to their employees.

Employers should not assume that by offering access to an employee assistance program or some other form of in-house wellness seminar, they have taken the necessary steps to avoid the risk of psychiatric injury to their employees.

While having the policies or structures in place is good, it isn’t enough for the policies to be in place, management must be aware of and familiar with the policies. As not knowing so could be seen as the employer failing to meet the duty of care owed to their employees. The case also clarified that for claims for breaches of duty involving psychiatric injury, the nature of the employment relationship and the requirements of the employee’s role will be taken into consideration.

The case really reinforces the idea that employers are responsible for taking reasonable steps that are necessary to assess any potential psychological risk that their employees might face in the course of their work. To this end employers should take appropriate action to respond to an employee’s circumstances as failing to do so could be viewed as a failure to discharge their duty of care. It also highlights the importance of effective policies and the appropriate training in the implementation of the policies in the workplace is essential to providing a safe workplace

By Kathryn Lewis & Enda Byrne

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