Author: Daniela Anicic
The recent SafeWork NSW investigation into the Coffs Harbour Community Corrections office for its hazardous workplace culture raise important considerations for the future of personal injury claims within the government sector. On Tuesday 7 May 2024, SafeWork issued the Coffs Harbour Community Corrections office with three improvement notices (INs). INs are issued to businesses or departments where potential breaches of the Work Health and Safety Act have been found. Following numerous complaints by staff, and submissions by the Public Service Association, regarding inadequate management of psychosocial hazards, including bullying, harassment, and unfair and inconsistent management of workplace performance and behaviours, SafeWork NSW deemed it necessary to place the NSW Department of Community Corrections, on notice regarding its response to such hazards. This also included direction to improve relevant policies and procedures in relation to responding to psychosocial hazards and management of complaints by staff.
In relation to the wider implications for personal injury sector, this investigation should assist firms in identifying that there are strong claims for both psychosocial workplace injuries and potentially, class actions against government departments and sectors. The investigation and PSA claimed the workplace issues are not isolated to the Coffs Harbour Office but have identified broader concerns for health and safety of workers within the corrective services sector.
Identifying, responding to, and initiating claims against government departments on a broader level, is a unique opportunity for firms and legal advocates who are passionate about supporting and achieving outcomes for individuals or group claimants. Whilst the investigation has identified the need by the Department to respond adequately, the INs issued are not mandatory, and it is at the discretion of the Department as to how they will respond and manage the identification of these hazards. Failure to appropriately respond could lead to a question of the integrity of the complaints process and adequacy of investigative procedures. Failure to respond and obviate identified risks can also lead to increase in injuries for individuals working in these departments. As advocates in the personal injury sector, the response by senior management in the Department should be monitored. Legal advocates should prepare to provide accurate and responsive advice that will assist individuals to understand their rights as they relate to workplace health and safety laws, and of course, personal injury law in general.
Bullying and harassment, and other psychosocial hazards are not unique to the government departments but also are prominent within the community services sector. Individuals who are subject to significant bulling, harassment, and unfair treatment by management often lack the necessary information to proceed with claims, that could substantially affect their life in the long term. Legal professionals in the personal injury sector are in a unique position to advocate and provide timely advice that could assist individuals to make informed decisions as to how they wish to proceed with their claims and rights, more broadly.
Legal professionals should also develop an understanding of psychosocial hazards, and the different types that exist and how they can combine and interact to cause further risks at work, within different sectors. Psychosocial hazards may interact or combine to create new, changed, or higher risks. For example, employees working in the corrective services sector with high-risk offenders need to be able to assess and respond to risk and potential harm to the community. If an individual is subject to bullying, harassment, or unfavourable working condition, it could result in a failure to appropriately manage risk of offenders as their mental health and well-being is impacted over a period, leading to diminished decision-making capabilities.
Further, from a personal injury claim perspective, there have been instances where individuals who have been subject to serious harassment and bullying have been isolated, and pressured into making decisions that are not in their best interest, simply due to a lack of appropriate advice. This may include returning to work too early, or not proceeding with a claim for damages or TPI assessment. This pressure is imposed by the employer’s insurers and the return-to-work facilitators. Advice should be made available to the public and how this is best achieved, is now for our profession to work towards.
Organisational Liability and Psychosocial Hazards in the Workplace
Organisations may be held to have breached their non-delegable duty of care to employees, who have experienced emotional, psychological, and physical abuse encountered within government departments by failing to appropriately investigate and obviate risks identified by staff and/or external Workplace Health and Safety inspectors.
Departments may also be vicariously liable for the actions of management. Managers who are in positions of power, trust, authority, and control and utilise their position to bully, harass, isolate, and cause psychological injury to employees, provide legal advocates with an alternative form of claim and of cause of action. Assess the nature of the injury, and more importantly, the context of the employment and management dynamic and whether this meets the criteria or vicarious liability or even direct liability for organisations and departments that have failed to adequately respond to, or investigate complaints made. Departments where managers, who by virtue of their position have had the opportunity and occasion by virtue of their roles, to cause emotional, psychological, or physical harm, may meet the necessary criteria for a claim in vicarious liability. Further, departments or organisations that have become aware or have known about such issues and have failed to respond appropriately, are exposing themselves to direct liability, whether through a breach of nondelegable duty of care or statutory duty. Failure to assess the objective seriousness of the investigation by SafeWork NSW and respond adequately to the INs issued by SafeWork NSW, places the NSW Department of Corrective Services in a precarious legal position.
Legal professionals have a duty and responsibility to advocate for their clients, provide timely and appropriate advice and develop a strong understanding of the most appropriate cause of action to be taken.
This author has experience and qualifications in high risk offender management with Community Corrections (Corrective Services NSW), mental health and law.