Positive steps employers can take to ensure they have a safe working environment for employees.
Authored by Adam Rich.
On 19 October 2023, in accordance with the Occupational Health and Safety Act 2004 (Vic) (the Act), the Melbourne Magistrates’ Court fined Court Services Victoria the sum of $379,157.00 for failing to provide and maintain a safe working environment for employees of the Coroner’s Court of Victoria (the Coroner’s Court).
What led to this fine was various complaints by employees of the Coroner’s Court between 2015 and 2018 relating to exposure to traumatic materials, role conflict and high workloads. Specifically, many of the complaints related to relentless bullying, favouritism, intimidation, excessive workloads, unclear roles and responsibilities, and threats to career progression. This long-term behaviour in the Coroner’s Court led an employee (who was the Coroner’s Court’s In-House Lawyer) to take her own life.
Where the Coroner’s Court erred under the Act was failing to take steps to rectify the toxic workplace environment despite voluminous complaints being made (and in particular 92 complaints against the former Coroner), and a 2015 staff survey identifying health and safety risks to staff.
A positive duty to ensure a workplace is safe, non-toxic, and is free from bullying
The Act identifies that employers must provide and maintain a working environment that is safe and free of risks to health, so far as is ‘reasonably practicable’. Risks to health includes not only physical health, but also mental health.
There was a common trend of risks to mental and physical health and safety caused by bullying and harassment in the workplace, which was identified at the Coroner’s Court. ‘Bullying’ is defined in the Fair Work Act 2009 as repeated unreasonable behaviour which creates a risk to health and safety. Some examples of bullying in the workplace have been identified by the Fair Work Act and the case of Amie Mac -v- Bank of Queensland Limited and Ors [2015] FWC 774 as:
- Aggressive and intimidating conduct including threats;
- Physical, verbal and emotional abuse;
- Belittling or humiliating comments;
- Victimisation;
- Spreading malicious rumours;
- Exclusion; and
- Unreasonable working expectations.
Coinciding with the duty to ensure a safe working environment, employers also have a duty to act quickly in response to any bullying behaviour due to the significant impacts such behaviour can have on employees and the workplace environment.
Regarding what constitutes ‘unreasonable working expectations’ (which was a major issue for the Coroner’s Court in respect of the conviction), most recently High Court Justice Jayne Jagot delivered a speech at the 2023 Minds Count Annual Lecture about ‘burn out’ in the workplace. Jagot J emphasised that ‘working long hours and not getting weekends to recover and regular holidays uninterrupted by work demands, over the long term, places stresses on many people that are unsustainable’, with a warning to avoid cultures of exploitation. While Jagot J’s emphasis was on a particular industry, this caution applies to all workplaces.
Importance of the conviction
The Coroner’s Court above conviction highlights not only the significant harm a toxic work environment can have on employees, but also the legal consequences for employers in failing to comply with the duty to provide a working environment which is safe and free from risks to the physical and mental health of its employees.
A key element of this requirement is that an employer’s obligation to provide and maintain a working environment that is safe and free of risks to health is limited to what is ‘reasonably practicable’.
So what is ‘reasonably practicable’?
Employers must consider a few things in this regard, such as the likelihood of the risk occurring, the harm to employees as a result of such risk or hazard, the knowledge of ways to eliminate risks, availability and suitability of ways to reduce or eliminate the risk and the cost of eliminating same.
Examples of positive steps which employers can take to attempt to prevent such risks include:
- Regularly assessing workloads of staff including job demands, exposure to difficult material and making appropriate changes such as implementing additional resources to alleviate demands, reviewing workloads during team meetings or informal check ins;
- Consulting with workers when determining performance targets. Employers should ensure such targets are realistic, achievable and take into account existing workloads;
- Reviewing policies, procedures and practices which prevent and respond to inappropriate behaviours, including bullying and harassment;
- Driving initiatives and programs that foster inclusivity, work-life balance and a positive culture which encourages respectful behaviours;
- Supporting employees to thrive in their roles, encouraging them to take regular periods of leave to unwind, and working to eliminate employee feelings of guilt about taking time off;
- Encouraging a culture where employees feel supported to speak up about workplace issues, including assessing mechanisms for raising concerns related to psychosocial health and safety; and
- Consulting with employees through worker surveys or toolbox discussions who are, or are likely to be, directly affected by a psychosocial hazard.
There has recently been a shift in what behaviour is deemed to be acceptable in the workplace. Given the current environment and the importance of physical and mental safety in the workplace, it is of the upmost importance for employers to be in tune with the environment in their workplaces and to take positive steps (so far as reasonably practical) to ensure the workplace is safe and free from risks of bullying and harassment which creates or may create a threat to the physical and mental health of its employees.
