With South Australia having now introduced the Work Health and Safety (Psychosocial Risks) Amendment Regulations 2023, the recent Victorian case illustrates the key issues that can arise in such matters. In this matter, Court Services Victoria was convicted and fined nearly $380,000 for its failure to properly identify and assess risks in relation to the psychological wellbeing of employees, contributing to a toxic workplace culture that led to:
The fine issued was the maximum penalty the Magistrates’ Court of Victoria could impose, with the Magistrate stating he would have issued a harsher penalty if possible.
The decision illustrates the importance of managing psychological risk as well as physical risks in the workplace and, particularly, in workplaces where employees are dealing with high work demands and difficult subject matter. Employers and persons conducting a business or undertaking (PCBUs) are required to proactively monitor both physical and psychosocial hazards, including by:
Facts and Decision: Court Services Victoria is a statutory body providing services and facilities to Victoria’s courts, including the Coroners Court of Victoria. Between 2015 and 2018, workers at the Coroners Court were exposed to traumatic materials and high workloads, experienced role conflicts and endured inappropriate workplace behaviours from supervisors. A Staff Cultural and Engagement Review from 2015 specifically exposed a ‘poor workplace culture, very low morale and unaddressed inappropriate behaviour’.
Several workers of the Coroners Court made complaints about the environment. These accusations included bullying, favouritism and verbal abuse. Many reported feeling stressed, anxious or humiliated due to these issues. Several employees took extended personal leave due to feelings of fear, anxiety, overwork and post-traumatic stress disorder.
In September 2018, the risk of psychiatric harm tragically eventuated when in-house lawyer, Jessica Wilby, died by suicide after being diagnosed with work-related major depressive disorder and insomnia. Ms Wilby had previously been overloaded with the duties of two or three solicitors and her attempts to seek support were overlooked. In 2021, WorkSafe Victoria commenced prosecution against Court Services Victoria for failing to provide and maintain a working environment that was safe and without risks to workers’ health. CSV pleaded guilty to the charges, admitting failure in conducting any adequate process to identify risks.
As indicated above, Magistrate Walsh convicted and fined Courts Services Victoria a total of $379,157 and ordered to pay costs of $13,863. Magistrate Walsh noted that the gravity of the breach was significant and involved high culpability. His Honour further noted he would have imposed a fine of $700,000 had there not been a guilty plea. Instead, his Honour determined that an appropriate fine was of the value of $500,000, which was reduced to the jurisdictional limit of the Magistrates’ Court.
New Regulations: This case demonstrates that regulators are increasingly focused on how employers are managing psychosocial risks within a framework that traditionally is only associated with physical harm and injuries. The prosecution against Court Services Victoria also captured conduct that occurred prior to the introduction of industrial manslaughter laws in Victoria and South Australia. However, with the introduction of the legalisation that has passed both Houses of Parliament, it leaves open the possibility of a regulator bringing proceedings in the future for industrial manslaughter following a worker suicide where there is evidence of criminal negligence that has caused the death of the worker.
Under the Work Health and Safety (Industrial Manslaughter) Amendment Act, individuals can face a maximum penalty of 20 years imprisonment, and $18 million for companies, if they are reckless or grossly negligent in conduct which breaches a work health and safety duty and results in the death of another person. It is more crucial than ever for organisations to recognise both physical and psychosocial hazards and be diligent in mitigating risks to prevent tragedies. Accordingly, we recommend that employers and PCBUs consider how their existing processes can be enhanced to align with continuing updates to managing psychosocial health in the workplace.
For further assistance with understanding these new laws; see our psychological safety for leaders program: Psychological Safety for Leaders — Training Course | The South Australian Business Chamber (business-sa.com)
