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THE State is showing an increasing willingness to

THE State is showing an increasing willingness to intervene legislatively in areas traditionally considered to be a matter of managerial prerogative for an employer, such as the number of employees required by a business and the workload of individuals.

The rationale for this intervention is that employers’ decisions as to reasonable workloads for an employee and/or the general organisation of work is an occupational safety and health matter as it may expose an employee to risk of injury.

In the recent Cerebos Ltd v Koehler decision, the Supreme Court of Western Australia examined whether the workload or duties imposed on an employee are objectively reasonable, regardless of the business imperatives leading to a changed work role.

In Cerebos, a sales representative sought damages for psychiatric injury, resulting from pressures to work which allegedly occurred as a result of the employer’s breach of its common law duty of care not to unreasonably expose her to risk of harm or injury in the workplace and for breach of section 19 of the Occupational Safety & Health Act (which contains a similar obligation) when it reduced the number of hours worked but not the duties to be performed.

The employer argued that the employee’s psychiatric injury (the existence of which injury was not in issue) had not been reasonably forseeable in all of the circumstance. The employee had only complained about the workload in an industrial sense and not about its adverse effects on her.

The court accepted the employer’s argument.

It said the test as to whether an employer failed to exercise reasonable care to avoid exposing an employee to an unnecessary risk of psychological/psychiatric injury depended on whether the injury complained of was foreseeable with respect to the particular employee in question, rather than a person of normal fortitude.

Thus, any fact or circumstance that alerts, or should alert, an employer to the possibility of a particular employee developing a psychological or psychiatric injury should be acted upon to minimise the employer’s exposure to liability for damages for psychiatric injury resulting from a foreseeable risk.

It is worth noting that in the Cerebos case, the Supreme Court commented that the employer’s response to the advice that the workload was excessive – that is to advise the employee to prioritise her work – would not be a sufficient response had it found the risk of psychiatric injury to be foreseeable.

It held that where the risk was found to be foreseeable, an employer would be required to take "more determined action to avert the risk of injury".

Examples of matters that could alert an employer to a potential risk of psychological or psychiatric injury are where a particular employee:

p Has an increased workload imposed without re-evaluating that person’s job description or the hours necessary to be worked to complete that workload;

p Makes a specific comment (verbal or in writing) that the employee feels quite "stressed" or "depressed";

p Is obviously having difficulty coping with the workload and tells colleagues about it;

p Is reported by fellow employees to be stressed, unusually irritable or having problems with their workload;

p Is increasingly absent from work on sick or unauthorised leave; or

p Exhibits unusual conduct, is late for work or there is a deterioration in the quality of work.

Where these signs exist it would not be prudent for an employer to assume that a person of normal fortitude would be able to cope and do nothing.

The employer must recognise that a particular employee may not be coping, investigate the situation and, if appropriate, take reasonable steps to reduce the workload or other stresses causing the problems and/or to refer the employee for counselling or other appropriate treatment.

Employers are not required to be mind readers but supervisors or those managing employees should be aware of issues affecting those directly answerable to them at work.

In addition to the issue of workload, there is the review currently underway by the Department of Consumer and Employment Protection on extended working hours and their effect on the safety and health of WA workers.

One option being considered is introducing a statutory cap on the maximum hours worked.

The report on the review is expected to be released in the not too distant future.

Maria Saraceni, partner 9426 6611

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