It is uncontroversial that employers owe a duty of care to their employees to provide a safe system of work and to take reasonable steps to prevent reasonably foreseeable injuries. This paramount duty extends beyond physical safety to encompass psychological well-being.
However, the recent decision in Kemp v Gold Coast Hospital and Health Service has reaffirmed that the scope of an employer’s duty is confined by reasonableness, and it does not impose a duty to prevent all potentially harmful conduct. Nor is an employer obliged to prevent gossip and provide a happy workplace.
In this case, the Plaintiff was employed at the Gold Coast University Hospital as a radiographer and sonographer. The Plaintiff claimed that his employer breached its duty of care after a complaint he filed to the Office of the Health Ombudsman about his colleagues was spread amongst the medical imaging department at the Hospital. Subsequently, he claimed that in response he was subjected to behaviour from staff which amounted to victimisation, retribution, bullying, harassment and abuse resulting in psychiatric injury.
Justice Sullivan found that while it was reasonably foreseeable that someone who wanted anonymity in making a complaint would have been angry, upset or stressed by a disclosure of his identity, it would be far-fetched to foresee that the disclosure would result in a recognised psychiatric illness.
The Hospital does not have a duty to not allow a complaint to become common knowledge or to take steps to preclude individual employees from forming suspicions in their own mind as to who had made the complaint.
Although the bullying and abuse claims by the Plaintiff were found to be unsubstantiated, the Court agreed that the Hospital does have a duty to take reasonable steps to devise, implement and supervise a proper and adequate procedure for dealing with allegations of this kind.
Takeaways
Whilst the Plaintiff was unsuccessful in this instance, Justice Sullivan emphasised the importance for employers to adopt psychosocial policies and procedures to mitigate risks to employees mental health which should be properly implemented and understood by employees and others covered by them.
It remains vital that employers adopt a proactive, risk based and systems approach to psychosocial health. Our workplace, employment and safety matters are experienced in providing advice on these matters and drafting appropriate policies and procedures. If you would like to discuss or require further information please contact Victoria Stamper on 9321 0522.
To read the full decision in Kemp v Gold Coast Hospital and Health Service [2024] QSC 259 click here.
Written by Victoria Stamper and Tom Gillard
