By Bianca Mazzarella

27 April 2022

We can be grateful for one positive (no pun intended) that has come out of the pandemic - the light it has shone on mental health and wellbeing in the workplace.

The much anticipated High Court decision of Kozarov v State of Victoria [2020] VSC 78 (Kozarov) has provided much needed guidance in this area and is a significant decision in employment law.

 

What was the Kozarov decision about?

Ms Kozarov alleged she sustained psychiatric injuries during the course of her employment as a solicitor in the Specialised Sexual Offences Unit of the Victorian Office of Public Prosecutions.

In her role, Ms Kozarov worked on child sex abuse claims and suffered chronic post-traumatic stress disorder (PTSD) and a major depressive disorder (MDD) as a result of recurring exposure to trauma in her case work.

It was found that there were nine evident signs that Ms Kozarov was failing to cope with her allocated work and that her mental health was at risk. This included Ms Kozarov signing a staff memorandum containing complaints about her workload and being allocated a particularly traumatic matter despite her excessive case load and resistance to taking the matter.

The High Court (over three separate judgements) awarded Ms Kozarov damages and held that the State of Victoria’s failure to provide her with a safe system of work prolonged and exacerbated her PTSD and development of MDD.

 

Takeaways for employers

Employer’s have a duty to recognise and assess psychosocial hazards and to take reasonable steps to prevent psychological injuries in the workplace.

To assist employers in meeting their workplace obligations they should ensure:

  • Concerns in relation to excessive workload are appropriately addressed and responded to;
  • Offers for counselling should be conducted in a private space i.e. not with glass walls;
  • Welfare checks are conducted with employees;
  • Appropriate workplace health and safety policies are implemented and training is provided to all employees;
  • Address changes in employee behaviour where appropriate such as changes in behaviour, unexpected absences, overworking, underperforming etc.
  • Provide training to management in relation to when managers should respond to signs of concern and implement preventative measures to safeguard staff well being;
  • Create an environment where the importance of mental health and an ‘open door’ approach to discuss concerns is understood by employees; and
  • Be extremely cautious and proactive if there are features of a particular job which make it inherently and obviously dangerous to an employee’s psychiatric health.

 

Whilst most employees don’t have to deal with trauma on a daily basis at work, the fact is that many industries, workplaces and employees are under pressure and it is important for employers to have appropriate policies in place – and to follow them.

 

You should contact Simon Abraham, Principal (sabraham@tlfc.com.au) or Bianca Mazzarella, Senior Associate (bmazzarella@tlfc.com.au) if you would like advice in relation to implementing workplace health and safety policies or how to address an employee’s concerns.

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