Employers duty to safeguard against psychological harm

What you need to know

• Employers engaged in areas that pose an obvious risk to mental health are considered to be 'on notice' of mental health risks, irrespective of whether an employee shows evident signs of mental health issues.
• Employers need to take active steps to mitigate risks to mental health.

What you need to do

• Consider whether your workplace poses an obvious risk to mental health.
• Consider whether the policies you have in place to mitigate the risks to mental health are being properly applied and implemented.
• Consider whether your officers are properly equipped to identify warning signs of mental health issues within their teams.

Kozarov v Victoria [2022] HCA 12 - Background

Kozarov v Victoria [2022] HCA 12 involved a claim by a lawyer working for the Specialist Sexual Offences Unit (SSOU) at the Victorian Office of Public Prosecutions. Throughout her work, Ms Kozarov was consistently exposed to sexual offences including child exploitation and pornography. On top of this, the unit was understaffed so workloads were increased. 

Ms Kozarov suffered PTSD and major depressive disorder and alleged this was due to her employer's negligence, breach of contract and breach of statutory duty to protect her from harm. 

Was the OPP on notice of the risks posed to Ms Kozarov's mental health?

Previously, the Courts have held that an employer is entitled to assume that an employee is able to perform the role they have been employed to fulfil. This assumption is only negated in the circumstance where an employee evidences warning signs of possible psychiatric injury (see Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44). In first instance proceedings, the Victorian Supreme Court placed significant emphasis on this test, looking to assess whether evident signs of psychiatric injury were present. 

On appeal, Kiefel CJ and Keane J disagreed with the Victorian Supreme Court and Court of Appeal's application of this test, finding it was irrelevant to the circumstances. Instead, Kiefel CJ and Keane J found that, where an employer acknowledges an inherent risk in the type of work that is being engaged in, it is not necessary for the employee to demonstrate additional warning signs of risks to mental health for this duty to be enlivened.

In this case, the employer was well aware of the risks posed to employees within the SSOU, so much so that it had implemented a Vicarious Trauma Policy to protect employees' mental health.

Gageler and Gleeson JJ also found that the existence of the Vicarious Trauma Policy alone was sufficient to prove that the risks posed to mental health by employment in the SSOU were reasonably foreseeable. However, given the way in which the case was presented to the Court, Gageler and Gleeson JJ still sought to make a finding in respect of whether the employer had been put on notice of the risks to Ms Kozarov's mental health through evident warning signs.

Ultimately, Gageler and Gleeson JJ, along with Gordon and Steward JJ, found that things such as Ms Kozarov's erratic behaviour, comments Ms Kozarov had made during training sessions and staff meetings and her excessive workload, were all evident warning signs of this risk.

Did the employer take all reasonable steps to protect Ms Kozarov's mental health?

The Vicarious Trauma Policy stated that the employer should encourage employees to rotate through different units to minimise the impacts on mental health caused by the SSOU. However, the employer did not encourage rotation or have a rotation mechanism in place. Kiefel CJ and Keane J pointed to this as evidence of the employer's breach of its duty of care to Ms Kozarov.

The Court of Appeal had found that Ms Kozarov would likely not have accepted a rotation had it been offered to her. However, the High Court disagreed. Gageler and Gleeson JJ found that there was sufficient basis that a reasonable person in Ms Kozarov's position would have accepted a rotation given the impacts on her mental health. Gordon and Steward JJ also agreed with this finding, and found that the employer could have taken other steps including further training, work management and a medical diagnosis. 

Ultimately, the High Court allowed Ms Kozarov's appeal.