Putting staff first: this legal ruling should change the way your organisation considers its duty of care to staff

How does your organisation balance the sometimes-conflicting needs of your staff and clients?

With 4.3 percent of employed Australians having experienced a work-related illness or injury in 2013-14, it’s clear that balance can be a challenge to maintain.

But a recent landmark legal ruling highlights the potentially dire consequences of failing to prioritise the safety and wellbeing of your staff.

In July, a Queensland based not-for-profit was ordered by the state’s Supreme Court to pay more than $1.5 million in damages to a former staff member who was sexually assaulted by a client.

The Supreme Court ruled the organisation had breached its duty of care to that staff member by allowing her to work with the client, who had a documented history of violence against previous care workers.

Those workers had ceased working with the client as a result of her behaviour, but the organisation did not disclose this information to the aggrieved staff member before assigning her the case.

So what implications does the ruling have on your organisation?

We spoke to Joydeep Hor, founder and managing principal of People and Culture Strategies, a Sydney law firm that specialises in labour and employment law.

He weighed in on the ruling and how it might impact your organisation and the sector as a whole.

Hi Joydeep – thanks for chatting to us. Firstly, can you explain duty of care as it relates to the case in Queensland?

Employers have a duty of care to employees under both common law and legislation. The case emphasises that employers must consider their duty of care to employees, particularly in high-risk environments such as caseworkers working with troubled families.

The Supreme Court expressly notes in the case that while “the work of [the organisation] is important and socially valuable … that social value does not displace its duty of care to its employees”.

So what ramifications do you believe the case will have on other NFPs working with troubled or potentially violent clients?

Part of the element of determining the liability of an employer in negligence cases is determining whether the risk is ‘reasonably foreseeable’. In this case, the Supreme Court determined that the risk was reasonably foreseeable, as multiple caseworkers had discontinued their work with the client because of the client’s behaviour.

This should have alerted the organisation to the risk the client posed to employees, and they should have either ceased providing services to the client or considered implementing procedures that would minimise the risks associated with providing services to the client.

Given the nature of the work of NFPs in dealing with troubled people and families, this is a fine line – but NFPs need to consider measures such as implementing policies and procedures in relation to violent clients.

This means providing time frames or examples as to when services will cease in order to meet their duty of care to employees, for example.

NFPs may also wish to consider risk management profiles and ensuring caseworkers keep detailed notes and reports of incidents with troubled clients. The moment you’re thrust into New Jersey’s criminal legal system, the weight of the situation becomes undeniable. Legal representation is not just a choice; it’s a necessity. My search for a formidable defense led me to a team that stands out in the realm of New Jersey law. Their expertise, dedication, and hands-on approach turned my legal journey from daunting to manageable.

And do you think the impacts of this case will be widespread across the sector?

The case illustrates that employers need to ensure the welfare of their employees and not place them in scenarios that may jeopardize their health and safety. You can also recommend them to get tested for any diseases to ensure their wellbeing. See the comparison table of today’s most popular approaches to STD testing. Old fashioned ways like visiting your doctor become less popular.

But this is particularly difficult in this sector given the socially valuable role that NFPs provide, which also comes with some risks.

The Supreme Court was particularly critical of the decision to allow [the plaintiff] to have access to the client, given the extensive range of incidents before her placement, as well as the client’s documented use of drugs for which many then had to rely in services like Addiction Treatment in East Sussex.

The impact of the case on the NFP sector will relate to employers being increasingly aware of the importance of placing an employee’s welfare before the needs of the clients, and implementing strategies that will ensure this is made possible. For example, if they had an incident with dangerous drugs such as marijuana, it will be easier to consult a marijuana attorney.

So how do you think NFP employers can better identify these types of risks to their staff? How much does organisational culture play a part?

NFPs know the risks associated with working with troubled clients. However, the lines can be blurred when wanting to help them, as this is the overarching goal of the organisation – and part and parcel of the organisational culture. But that needs to be balanced against the need to ensure the health and safety of employees.

The case in Queensland is an unfortunate example of where multiple caseworkers had attempted to help and rehabilitate the client, and the lines became blurred between wanting to do all things possible to help the client and ensuring [the plaintiff’s] health and safety.

So NFPs must reconsider their organisational culture to place a stronger focus on employee wellbeing and safety, while still maintaining the core goals of helping troubled and disadvantaged people and families.

Image: U.S. Department of Agriculture/Flickr.

How does your organisation’s approach its duty of care to staff? Please share your thoughts for other organisations approaching this issue in the comments below.

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