Victorian public sector employment: Occupational health and safety update

The annus horribilis of 2020 saw a number of important cases handed down which involve and have implications for various parts of the Victorian public sector.

This article is part of a series on Victorian Public Sector Employment: Approaching 2021 with 2020 vision.

Also in this series:

• Limitations and learnings from litigation
• Victorian Public Service Enterprise Agreement 2020
• Industrial implications arising from the amalgamation of Victoria's fire services

COVID-19: A workplace safety risk

Following the second wave of COVID-19 infections in Victoria in July 2020, the Victorian government swiftly imposed a duty on employers to minimise the risk of COVID-19 transmission at Victorian workplaces as far as reasonably practicable.

Through amending the Occupational Health and Safety Act 2004 (Vic) (OHS Act) and its supporting regulations, the government effectively deputised WorkSafe to assist in combatting COVID-19 transmissions in the workplace and enforcing the directions of the Chief Health Officer.

In July 2020, the Victorian government introduced the Occupational Health and Safety (COVID-19 Incident Notification) Regulations 2020 (Vic). These regulations require employers and persons who control workplaces to immediately notify WorkSafe if an employee or contractor who has been at the workplace in the past 14 days tests positive for COVID-19. This gives WorkSafe the ability to investigate measures that duty holders have in place to minimise the risk of transmission in the workplace.

Similarly, in September 2020, the government amended the OHS Act to allow WorkSafe inspectors to issue duty holders with Prohibition Notices, in the event that they fail to comply with health directions relating to COVID-19 issued under the Public Health and Wellbeing Act 2008 (Vic).¹ Previously, in order to reach the threshold requirement to issue a Prohibition Notice, it is likely that there would have needed to be a confirmed COVID-19 case at the workplace.

Employers must constantly reassess available guidance and health directions in relation to COVID-19 and update their COVID-19 safe plans and/or control measures where required. It is imperative for employers to consult with their employees about any proposed changes.

WorkSafe commenced investigations into several employers who had COVID-19 in their workplaces. It remains to be seen whether any employers will be the subject of a prosecution for breaching their OHS Act obligations.

Working from home: Duties, risks and liabilities

It is apparent that working from home, once seen to be a temporary COVID-19 control measure, is now a permanent part of working life for most of us.

Pursuant to the OHS Act, employers are obliged to ensure a safe working environment for their employees so far as reasonably practicable. This duty also extends to employees' home offices. Employers may need to reassess the adequacy of measures initially put in place to ensure that employees were working safely in their temporary home offices, as these become more permanent arrangements.

To comply with this duty, employers should conduct a comprehensive risk assessment that addresses any physical and psychological risks to employees who are likely to continue working from home. Employers should implement all reasonably practicable control measures to address these risks.

To manage the physical risks to employees working at home, employers should assess the ergonomic needs of employees in home office environments, and:

• provide guidance for home office equipment requirements: chair, desk, monitor/s, internet, headsets, keyboard, mouse, laptop and cables, footrest (if required)
• provide guidance for ensuring the work area is clear of other hazards and addressing issues such as lighting and temperature controls
• build guidance into induction processes and ensure there is training for employees
• verify compliance through self-complete check lists and virtual assessments, and
• enforce recommendations.

Employers should also consider providing, reimbursing or contributing towards safe equipment that addresses any hazards for the employee's home office.

Employers should also provide the option of working from an office where the home environment is unsafe, i.e. as a result of domestic violence.

In controlling psychological risks at employee home offices, it is recommended that employers consider the following measures:

• review appropriate workplace behaviour policies to ensure they sufficiently address behaviour while working from home
• ensure employees have completed bullying, harassment and discrimination training
• investigate complaints of inappropriate behaviour towards employees while working from home
• ensure regular manager check-ins
• provide guidance around flexible work that encourages employees to still put boundaries in place between work and home life
• encourage employees to take annual leave, despite the closure of international borders and potential travel restrictions, and
• consider whether any additional wellbeing programs/measures (both preventative and curative) should be put in place to proactively address mental health issues.

Introduction of the offence of workplace manslaughter

The offence of workplace manslaughter came into effect on 1 July 2020. The offence was created by an amendment to the OHS Act and may apply to any workplace death which occurs after 1 July 2020.

The offence applies to all duty holders under the OHS Act (including employers or persons with management or control of workplaces) with the exception of employees, who have been specifically excluded from the application of the offence. The offence also applies to officers of duty holders, including board members and senior executives.

The offence is made out if all elements below are proven to the criminal standard:

• the person owes a duty under the OHS Act (i.e. an employer) to another person
• the person, or an officer of the person, engages in conduct relating to the person's business
• the conduct causes the death of the person who is owed the duty, and
• the conduct is negligent.

The definition of negligence in the OHS Act equates to criminal negligence, namely, a great falling short of the standard of care that would be exercised by a reasonable person in the position of the duty holder.²

Importantly, the offence does not create a new duty for duty holders. Rather, the purpose of the offence is to impose significant penalties for duty holders where their failure to discharge their duty constitutes criminal negligence and results in death. Upon conviction, individuals face a maximum of 25 years’ imprisonment and bodies corporate can be subject to a maximum fine of $16.19 million.

The offence also allows for the aggregation of conduct to amount to cumulative negligence, and also allows for direct attribution of negligent conduct by employees or agents so that their conduct becomes that of the body corporate.

Recent cases put spotlight on risks to psychological health

Two recent cases involving Victorian public servants demonstrate the profound and sometimes tragic impact of psychological injury in the workplace.

State v Kozarov

In State of Victoria v Kozarov³, a solicitor employed by the Office of Public Prosecutions (OPP) sought damages as a result of psychological injury sustained during her work with the sexual offences unit.

The plaintiff claimed that she suffered post-traumatic stress disorder and a major depressive episode which arose from her work. Her work involved working with victims of child sexual offences and she was routinely exposed to child pornography and other disturbing material.

When the plaintiff commenced her employment in 2008, the OPP had a range of measures in place to reduce the risk of vicarious trauma to its employees. These measures included counselling, debriefing, rotations within the department and avoiding long hours.

By June 2011, the plaintiff was struggling with a heavy workload and advised her managers that she was unable to take on further files. In August 2011, the plaintiff fell sick at work and took two weeks of sick leave. On 28 August 2011, whilst still on sick leave, the plaintiff applied for a promotion in the sexual offences unit. The next day, upon her return to work, she had a dispute with her manager.

In February 2012, after a period of leave, the plaintiff emailed her managers and advised that she was anxious and distressed about having to return to work in the sexual offences unit and demanded an immediate transfer. The OPP requested that the plaintiff provide medical material supporting the basis of the request.

The plaintiff never returned to work at the OPP and, in April 2012, her employment was terminated. In 2016, the plaintiff commenced proceedings against the State of Victoria seeking damages for her psychiatric injury.

At first instance, Justice Dixon of the Supreme Court found that the OPP had breached its duty of care to the plaintiff and awarded her $435,000 in damages.⁴

The judge found that the OPP was on notice from August 2011 that the plaintiff was at risk of psychological injury. The judge found that if appropriate intervention had been in place in August 2011, it would have revealed that the plaintiff should have been rotated out of the unit and she would not have suffered the psychological injury that she did.

That decision was overturned on appeal. The Court of Appeal found that it was entirely speculative that the appropriate exercise of care by the OPP would have resulted in the plaintiff accepting a rotation out of the sexual offences unit, particularly in light of the fact that she had sought and accepted a promotion in the sexual offences unit after August 2011.

Finding into death without inquest: Jessica Wilby

The findings of the Wilby coronial inquest⁵ revealed the rapid, yet tragic, impact of an excessive workload on a lawyer employed in the Coroners’ Court. Jessica Wilby had been employed by the Coroners' Court since 2013. As Principal In-House Solicitor at the Court, she was highly respected and well-liked by her colleagues.

In February 2018, Ms Wilby accepted a role as acting Senior Legal Counsel at the Coroners' Court whilst maintaining her role as Principal In-House Solicitor. The acting role was demanding and included a significant case load. It also required Ms Wilby to manage staff, including the preparation of performance plans, for which she had never received training.

Within weeks of accepting the position, Ms Wilby felt her workload had become unbearable and in March 2018, she was found by staff in a highly distressed state and unable to speak. The acting Executive Officer erroneously believed that Ms Wilby's condition was related to issues in her personal life.

In April 2018, Ms Wilby returned to her existing role, however by that time, her mental health had deteriorated and continued to do so. Ms Wilby went on sick leave in late May 2018 and never returned to work.

Sadly, in September 2018, Ms Wilby took her own life.

In his findings, the Coroner concluded that Ms Wilby obsessed over the negative impact that her short tenure as acting Senior Legal Counsel would have on her career. The Coroner found that the role of Senior Legal Counsel was "patently beyond the capacity of one person yet [Ms Wilby] also carried her existing role of Principal In-House Solicitor."⁶ The Coroner also found that the culture of the Court at the time of Ms Wilby's employment was dysfunctional and toxic.

These cases demonstrate that employers must be constantly vigilant to the risk of psychological injury in the workplace and to implement measures to monitor mental wellbeing.

Read next:

• Limitations and learnings from litigation
• Victorian Public Service Enterprise Agreement 2020
• Industrial implications arising from the amalgamation of Victoria's fire services

¹ Section 190 of the OHS Act.

² Section 39E of the OHS Act.

³ State of Victoria v Kozarov [2020] VSCA 301 (24 November 2020).

⁴ Kozarov v State of Victoria [2020] VSC 78.

⁵ Finding Into Death Without Inquest - Jessica Wilby 6 November 2020.

⁶ Ibid at [135].