As an employer, you have an obligation to make sure your employees are doing well. This means taking measures to ensure that employees are not harmed physically or psychologically. 

In Australia, this duty has materialised into the law as Workplace Health and Safety regulations. These rules apply even if your employees work from home, so it’s essential to understand what the law dictates about your responsibilities in the workplace. 

In this article, we’ll take a closer look at your employer obligations and the concept of the duty of care you owe to your employees. 

What Is A Duty Of Care?

A duty of care means taking reasonable steps to ensure the safety of others. This is usually a legal duty and one that belongs to a person of authority to their subordinates. 

A teacher has a duty of care to make sure all the students in their classroom are safe and kept away from potential dangers. This could include removing sharp objects in the classroom or establishing rules to minimise the risk of physical harm, such as running indoors. 

What Is A Duty Of Care For Employers?

An employer’s duty of care refers to the legal obligation they have towards their employees to provide a safe working environment. A safe working environment involves upholding employees’ mental wellbeing as well as physical safety. 

What Is Workplace Health And Safety?

Workplace health and safety is the main regulatory guideline establishing the standard of care employers need to practice in order to fulfil their duty of care towards their employees. Safe Work Australia is the main organisation that looks after workplace health and safety. 

Practising workplace health and safety regulations can take the form of: 

  • Providing employees with all the necessary safety equipment 
  • Giving adequate training to all employees so they are well informed in handling any machinery 
  • Getting rid of any hazards around the workplace
  • Having plans for emergencies such as a fire 
  • Allowing employees the opportunity to discuss any safety concerns 
  • Having the right policies and an appropriate staff handbook

Employer’s Duty Of Care To Employees’ Mental Health

In 2018-2019, $736 million was paid in workers compensation for claims that cited mental health conditions stemming from unhealthy work environments. Not only do employers have a duty to make sure the physical environment is safe for employees, but they are also responsible for preventing psychological harm in the workplace. 

Psychological harm can come in many forms and cannot always be visibly seen like an injury, so keeping communication open with your employees is essential. 

Take steps to make sure they feel safe expressing any concerns regarding their work environment and look out for hazards that can negatively impact an employee’s mental health. These often include:

  • Unreasonably long hours
  • Bullying and harassment
  • Lack of support from superiors
  • Traumatic events
  • High stress or pressure 

Can My Employee Take A Mental Health Day Off Work?

There is no official leave category for a mental health day off work, however, employees are able to take their personal sick leave for mental health related reasons. 

Mental burnout, stress, anxiety and anything else related to the mind are very real implications for the working population. Therefore, workplace leave policies should be open to recognising and catering to these needs. 

Does A Duty Of Care Still Apply When Working From Home?

Yes, a duty of care is still required even if your employees work remotely

Mental stress can arise from working remotely and in an isolated way. Therefore, if you have employees that are working from home, make sure you are taking into consideration their physical and psychological needs. This can be done in a number of ways, including: 

  • Providing them with the equipment or set up they will need to complete their work
  • Having frequent and open communication with them 
  • Making sure all online channels used between employees to communicate are being used appropriately and professionally 
  • Giving the employees an opportunity to update their superiors on how their remote work is going and allow them to provide feedback on how it can be improved
  • Virtual informal catch up sessions

Employer’s Duty Of Care: Domestic Violence

Employees that are facing domestic violence situations will need additional support from their employers. Oftentimes, this will mean having confidential discussions with employees and offering them flexible working arrangements which can include working in a different location or spending more time in the office so they have less time at home. 

In May 2022, Fair Work Australia also extended the domestic violence leave to 10 days. If you are an employer, you will need to take into account the possibility of employees that have difficult home life situations and accommodate them accordingly. 

Is It Legal To Have Workplace Cameras And Surveillance?

Employers are legally allowed to have workplace cameras and surveillance, however, it must not override the employees’ right to privacy under the Workplace Surveillance Act 2005

This means that employees need to be aware of all cameras that are being used in the workplace. Furthermore, surveillance devices cannot be installed in private areas such as bathrooms.  

How Can I Uphold My Duty Of Care?

Employers can uphold their legal duty of care by providing a workspace that minimises the risk of mental or physical harm. There are a couple of ways you can uphold your duty of care towards your employees – we’ve listed a few of them down below. 

Workplace Culture

A positive environment can make a huge difference. As a leader, you will set the tone for workplace culture and being able to strike a balance that entails a both friendly and professional environment is a hallmark of a good leader. 

A workplace with a positive culture recognises their employees, encourages open communication, supports the individual growth of employees, has a strong purpose and is committed to their values. 

Staff Handbooks

It’s important for staff to be aware of their responsibilities when it comes to a safe working environment for everyone. As we mentioned earlier, it is the duty of staff to make sure they are compliant with actions and procedures that ensure the safety of those around them. 

Summarising these expectations and duties in a helpful handbook and handing them out to all staff members can be a great way to make sure everyone is on the same page. It’s also a great element to add to your onboarding process, as it shows new employees that you’re serious about your employer obligations. 

Harassment, Bullying And Discrimination Policy

There is zero tolerance for harrasment, bullying and discrimination in workplaces according to the law. As a result, every workplace should have a strong policy against harrasment, bullying and discrimination. 

In addition to policy, consider conducting training seminars as well as having a formal complaint and investigation process where employees are able to bring forward their claims. 

Can I Be Held Liable For My Employee’s Actions?

It’s an employee’s duty to make sure their own practices are compliant with workplace health and safety regulations. However, it is your duty as an employer to take reasonable measures to set a good standard of care and properly train and educate your employees on this. 

Employers need to be receptive and responsive to any complaints from employees about other employees as well. If nothing is done, then as an employer, you can be deemed as part of the problem and face legal consequences. 

In Keegan v Sussan Corporation, Ms Keegan’s superiors failed to take any suitable action when they complained about facing bullying and harassment in the workplace. As a result, Ms Keegan was found to have suffered psychological harm and was awarded $240,000 in damages by the court. 

Vicarious Liability For Employers

Vicarious liability refers to an employer’s liability for their employees actions. If there is a connection between an employee’s harmful actions and their employer, the employer can find themselves taking part in the liability.

In order for vicarious liability accusations to be recognised, it must be proven there was a connection between the wrongful act and whether the employee was acting on their own terms or doing their duty as an employee.  

In order to avoid getting roped into vicarious liability claims, you must take every step reasonably within your power to keep your employees informed of acceptable conduct in the workplace. 

Key Takeaways

As an employer, your duty of care towards your employees is a primary and ongoing concern that should never be overlooked. If you require assistance or more information regarding your employer duties, feel free to contact one of our legal experts today. 

To summarise what we’ve discussed: 

  • Employers have a duty to keep their employees safe from physical and mental harm 
  • In order to fulfil this duty, employers need to take reasonable steps to secure the safety of their employees 
  • Mental health and potential domestic violence situations should also be taken into account 
  • While workplace surveillance is legal, it must also comply with the relevant legislation
  • As an employer, you can avoid being held liable for the actions of your employees by taking reasonable action to prevent harm and ensuring to respond to any complaints 
  • Training staff and promoting positive workplace culture can also contribute to a better, healthier work environment. 

If you have any questions around your obligations as an employer in Australia, our employment lawyers are happy to chat. 

If you would like a consultation on an employer’s duty of care, you can reach us at 1800 730 617 or for a free, no-obligations chat.

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