Talking about a recent case heard in the QLD Supreme Court where a worker was foreseeably harmed should achieve 2 of the 3 aims of National Safe Work Month. The findings were delivered in July 2016. An excerpt of the case can be found at the bottom of this blog. The precedent is likely to be applicable to most organisations.
I imagine most of us have experienced situations where poor decisions about safety have been made. Hopefully raising awareness about this case will help to avoid that in the future.
Some key points from the case:
1. The organisation’s work is “important and socially valuable but that social value does not displace its duty of care to its employees”. Justice Roslyn Atkinson.
From time to time, our focus on our clients’ wellbeing eclipses that of our staff.
“If you look after your staff, they’ll look after your customers. It’s that simple.” Richard Branson.
What can you do to look after your staff better?
2. The risk that the client would sexually assault an employee was not inevitable. However it was clearly foreseeable. It was also clearly foreseeable an employee would suffer psychiatric injury because of a sexual assault.
The distinction between “inevitable” and “foreseeable” is clear.
Some people will only take definitive action to mitigate a risk at the point when the likelihood is assessed as “inevitable”. This delay may be influenced by limited resources, a lack of appreciation of the seriousness of the risk, or simply “it won’t happen to me”.
Are all your foreseeable serious risks being appropriately mitigated at your organisation?
3. The organisation should have stopped supporting the client after other employees said they felt unsafe working with the client.
Too often we hear that one staff member has been allocated a challenging client because another staff member (or members) has refused to continue working with that client citing safety concerns.
In the absence of additional measures, the risk of the next staff member being harmed by the client is the same as it was for the previous staff member. This is a foreseeable risk!
Simply changing staff is not enough. Additional measures need to be implemented to manage the safety concerns for the benefit of both the client and the staff member. Start the safety conversation today.
4. The organisation was aware of the potential for an assault but did not warn the employee.
Information is sometimes withheld from staff members due to concerns for the privacy of either the client or previously involved staff members or both.
Duty of care considerations trump privacy considerations. Even in situations where we have a good understanding of the privacy consequences, we are unlikely to know whether the competing safety risk will actually eventuate. Nor do we usually know how serious the consequences will actually be if it does eventuate.
Such uncertainty may lead us to prioritise what is “known”, i.e. the privacy concerns, over what may or may not eventuate, i.e. the safety concerns.
Would the sharing of pertinent information help to better manage the safely risks?
If yes then the appropriate people need to be given that information. Naturally those people will then be obligated to handle that information confidentially.
5. The organisation was responsible for the assault because of the client’s known and long history of sexualised and inappropriate behaviour.
I wonder how many safety conversations might there have been during the course of working with this client.
How many opportunities might there have been following those safety conversations to make the necessary changes to keep everyone involved safe?
Safety leadership must be promoted and exemplified at all levels.
If you see an unsafe practice, you have a duty of care to yourself and to those around you to raise your concerns.
Unfortunately safety decisions are not always made the way they should be. Putting your concerns in writing may act as a catalyst for accountability about matters of safety.
6. The employee was awarded $1.5M in damages.
The cost is more than dollars and statistics. No doubt the $1.5M pales in comparison to the personal, physical, emotional, psychological, and financial costs to the employee, the organisation, their families, the client, and all other stakeholders involved.
Furthermore, in addition to hefty financial penalties, the accountability for work-practice negligence now includes criminal prosecution of key members of management who have been found to have acted negligently.
This case is a prompt to reflect on our policies and procedures and how our managers and staff apply them.
Do you question the way things are done in your search for continuous improvement?
Generally speaking many people do not work well when they are feeling unsafe. What can you do differently so that staff feel safer at work so they will then have the confidence to do their best work for your clients?
Because of a foreseeable incident at work, people just like you and me did not finish their day with the same health and wellbeing as when they started. Our thoughts go out to them.
Should you wish to discuss strategies to improve your staff’s safety in their work environment, please feel welcome to contact Holland Thomas.
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Here is an excerpt of the finding:
The Qld Supreme Court has awarded a Brisbane social worker more than $1.5m in damages after a client sexually assaulted her. Justice Roslyn Atkinson said it was a “very serious” case because the woman’s employer was aware of the potential for an assault but did not warn the staff member. Several other Brisbane Youth Service Inc (BYS) workers had refused to deal with the female client, known as T, after she threatened to rape them and they felt unsafe with her. But when BYS managers asked the social worker (known as LCB to protect her identity under Qld law) to accept T as a client, they did not tell her about T’s history, colleagues’ concerns, or a letter T wrote expressing an urge to “stalk, rape and murder” her case workers. Justice Atkinson heard the sexual assault occurred when LCB was meeting T, T’s lawyer and T’s mother on April 12, 2011. The incident had a profound effect on LCB, causing traumatic memories from her childhood and young adulthood to resurface. That included sexual assaults as a child by four men, including her grandfather and a cousin, and being involved in an abusive relationship at university. Since the assault, LCB had self-harmed and been hospitalised with mental health issues. Her marriage failed because she could no longer have sexual relations. On July 28, Justice Atkinson said she accepted medical reports LCB’s illness was probably incurable and caused by T’s assault rather than previous traumas. “There was some pre-existing vulnerability but any prior psychiatric disturbance had well and truly settled [before] the assault,” she said. Justice Atkinson said BYS was responsible for the assault because of T’s known and long history of sexualised and inappropriate behaviour. “The risk T would sexually assault [a BYS] employee was not inevitable but was clearly foreseeable,” Justice Atkinson said. “It was also clearly foreseeable an employee would suffer psychiatric injury [because] of a sexual assault.” She said BYS should have stopped supporting T after other employees said they felt unsafe working with her. T had developed an unhealthy and unacceptable level of intimacy and sexualised behaviour towards her case workers. “BYS’s [work] is important and socially valuable but that social value does not displace its duty of care to its employees,” Justice Atkinson said. She ordered Qld WorkCover to pay LCB $1,508,639 in damages.
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Travis Holland
Managing Director
Holland Thomas
Should you wish to discuss strategies to improve your staff’s safety in their work environment, please feel welcome to contact Holland Thomas.
Our goal at Holland Thomas is to create safer workplaces that enhance wellbeing for all concerned whilst also delivering improved operational and financial performance.
This blog draws on our years of experience delivering our M.A.B.™ Staff Safety Training (Contextualised Prevention and Management of Aggressive Behaviours) across Australia and the development of My Safety Buddy, our smartphone app and web portal based lone worker safety solution.
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