A recent case from the Supreme Court of Queensland (Beven v Brisbane Youth Service Inc [2016] QSC 163) again illustrates the importance of managing risks to psychological health and risks of occupational violence.
The case involves a sexual assault perpetrated by a client of the Brisbane Youth Service Inc. (BYS) on one of its employee case workers. The client had a history of drug use (which was continuing), sexualised behaviours towards a number of the workers with whom she came into contact (both at BYS and other organisations) and had made two previous staff members of BYS feel unsafe when working with her (to the extent that they ceased working with her or working with her at her home alone).
While the client’s drug use was known to the plaintiff, she was not told by her employer that the client had stalked other workers, nor that the client had expressed thoughts about ‘stalking, drugging and raping women’. The employer was aware of these matters as they had been reported to it by the other employees over the course of the two years that the client had been with BYS.
The Court found that the risk of sexual assault had been clearly foreseeable and that to manage the risk, BYS should have declined to continue to offer services to the client. The Court found the employer liable in negligence for the employee’s psychological injury and awarded $1.5 million in damages.
Interestingly the Court stated that the “…work of BYS is important and socially valuable but that social value does not displace its duty of care to its employees”. The social value of the work also does not displace an employer’s obligation to provide and maintain a safe working environment, so far as is reasonably practicable, under Work Health and Safety legislation (in the various WHS jurisdictions), the Occupational Health and Safety Act 2004 (Vic) and Occupational Safety and Health Act 1984 (WA).
While ceasing to work with the client would have prevented the sexual assault from occurring, the case does not address (nor was it required to in the context of the plaintiff’s claim for negligence) what the employer should have done to manage the risk to psycho-social health of the employees working with the client over the 2 year period (prior to the assault occurring). In other words, how should the employer have managed the risks to its employees’ psychological health presented by the client (or other difficult clients)?
The best approach to management of risks to psychological health involves a comprehensive and documented approach which may include the following:
- Senior leadership commitment to management of risks to psychological health in the form of a policy (such as an bullying and occupational violence policy) and the active promotion of it;
- Setting objectives for the psycho-social health of the workplace and strategies for dealing with the associated change(s);
- Employee consultation and participation in relation to the identification of hazards, risk assessment and control of the risks, including through HSRs and existing WHS/OHS committees;
- Consideration of general psychological health workplace risk factors (beyond customer/client aggression and violence) such as whether:(i) the job demands are appropriately matched with the competencies of the workers;
(ii) there are poor work relationships;
(iii) there are vulnerable workers;
(iv) there are appropriate systems of work, resourcing, time-frames, support and performance measures; and
(v) a work environment that protects psychological and physical safety;
- Effective policies and procedures including procedures which deal with general risk management and disciplinary matters (and consequences for customers/clients who breach acceptable conduct standards) and specific procedures dealing with bullying and harassment, occupational violence, emergency response and internal reporting of incidents and breaches of those policies and procedures;
- Assessment of training needs and provision of that training which may relate to basic awareness of workplace factors for psychological health; conflict management skills and management of difficult clients and emergency situations; hazard identification and risk control.
