Was the employer aware of workplace risks? Supreme Court looks into 'duty of care'
The Supreme Court of Queensland recently dealt with a case involving a call centre worker who suffered psychiatric injury due to the nature of her work.
In this case, the worker argued that her employer failed to provide a safe working environment and adequate support, despite being aware of the risks associated with handling distressing and abusive calls.
She claimed that the employer's negligence and breach of duty led to her psychiatric injury. The worker pointed to several incidents throughout her employment that she believed should have alerted the employer to the potential for harm.
Call centre's stressful environment
The case centred around a worker employed in a call centre operated by a local council. The call centre dealt with enquiries, complaints, and after-hours emergencies from members of the public. The worker was part of the after-hours team, typically working weekend and night shifts from July 2008 to March 2017.
During a standard shift, the worker would receive approximately 50-60 incoming calls. Some of these calls were described as aggressive, inappropriate, disturbing, and/or distressing. The court noted that certain members of the community called more frequently than others, with some being abusive and threatening.
The employer had conducted training for call centre workers on handling abusive calls, including instructing workers to warn callers that they could terminate the call if the abuse did not stop.
The issue of serial callers was raised at numerous team and staff meetings during the relevant period.
Employer's awareness of workplace risks
The court noted that the employer was aware of the potential risks associated with the nature of the work. This was evident from a memorandum sent to staff in September 2015 by the employer's manager of customer services, which described the management of verbally abusive calls as "a serious matter" and stated that the employer had "zero tolerance" for such behaviour.
The employer also offered an Employee Assistance Program (EAP), providing free, confidential psychological counselling for workers dealing with issues such as anxiety, stress, and depression.
The court said that the manager's understanding of the EAP was that it was "an anonymous counselling service for employees who are distressed or upset."
Challenges faced by call centre staff
Throughout the worker's employment, there were several incidents that highlighted the challenges faced by call centre staff:
- In 2008 and 2009, the worker became distressed after receiving a call about storm damage. She applied for time off and a career break was approved, but she did not take it.
- In October 2015, a colleague suffered extreme anxiety following a call from a known serial caller. This was reported to team leaders in a "near miss" report.
- In October 2016, the worker left work early and later broke down in conversation with a supervisor about dealing with a particular serial caller. The worker was described as "crying and shaking, pleading with [the supervisor] that she could not deal with [the serial caller] anymore."
- In December 2016, the worker was observed crying at her desk after a call from another known abusive caller. The worker filed a "near miss" report for this incident.
These incidents culminated in March 2017, when the worker broke down after another call from a serial caller, which implicitly suggested he had been inside the ladies' toilets at a local park.
The worker ran out of the office, drove home, and never returned to work. It was not disputed that she had suffered a psychiatric injury during the course of her employment.
Employer’s duty of care and liability
The case was considered under the Workers' Compensation and Rehabilitation Act 2003 (Qld), which outlines the principles for determining an employer's duty of care and liability for workplace injuries.
The court focused on several questions:
- Was the risk of psychiatric injury to the worker foreseeable?
- Did the employer breach its duty of care?
- If there was a breach, did it cause the worker's injury?
The court emphasised the importance of considering these questions within the statutory framework, rather than relying solely on common law principles.
"The proper starting point for examination of liability issues in a case such as the present is a consideration of the relevant provisions of ss 305B–305E of the Workers' Compensation and Rehabilitation Act 2003 (Qld)," the court noted, highlighting the importance of adhering to the statutory framework in such cases.
Is it a ‘reasonably foreseeable’ injury?
One of the central issues in the case was whether the worker's psychiatric injury was reasonably foreseeable by the employer. The court clarified that the question of foreseeability should be framed in terms of the general risk of injury, rather than the specific injury suffered by the worker.
The court also addressed a common misconception about the need for "evident signs" of distress or vulnerability from an employee before psychiatric injury can be considered foreseeable.
Referring to recent High Court decisions, the court explained:
"Kozarov makes plain that evident signs of distress or vulnerability on the part of [a worker] are not a precondition that must be satisfied before psychiatric injury can be found to be reasonably foreseeable and are not a legal criterion for liability. Rather, they provide a means by which reasonable foreseeability may be established on the facts, and in some cases, the absence of them may mean that [the employer] would have no reason to suspect that psychiatric injury is on the cards for the particular employee or class of employees."
The court found that the original judge had erred in her approach to foreseeability and had not properly addressed the issues of breach and causation within the statutory framework.
In its conclusion, the court emphasised several important points:
"The existence of the relevant duty of care was not in dispute. Implicit in that position was the acceptance of reasonable foreseeability of the kind of injury that had been suffered by [the worker]."
"The statutory inquiry had to be into the foreseeability of the risk of injury of the general kind of that which occurred, not into whether the particular psychiatric injury suffered by [the worker] was foreseeable," the court added.
"Unfortunately, it seems that [the judge's] attention was not drawn either to Kozarov v Victoria or to Bersee v State of Victoria in which that misunderstanding of the effect of Koehler is explained."
Consequently, the Supreme Court set aside the original decision dismissing the worker's claim and ordered that the case be remitted for further consideration.
The case provides insight into the considerations surrounding workplace risks, particularly in high-stress environments like call centres. It emphasises the need for measures to protect employee wellbeing and the importance of understanding legal obligations within the context of current case law and statutory frameworks.
