Australia: Unreasonable workloads and psychiatric injury – when does a duty to protect employees arise?

In April 2022, a High Court decision marked a significant development in the law about psychiatric injuries and an employer's duty to take steps to prevent risk of harm. Before this case, the law was:

• an employer's duty of care was engaged if psychiatric injury to a particular employee was reasonably foreseeable; and
• an employer was entitled to assume that employees considered themselves able to perform their stated duties unless there were "evident signs" to the contrary.

By contrast, this new case means that the law is that "evident signs of distress or vulnerability on the part of the [employee] are not a precondition" to finding a psychiatric injury was reasonably foreseeable and that some types of work are "inherently and obviously dangerous to [an employee's] psychiatric health."

The High Court said that some forms of work present an inherent risk of psychiatric harm, regardless of an employee's representation that they are able to complete the duties asked of them, and that an employer's duty to take steps to ameliorate such risks arises even before an employee demonstrates signs of psychological distress. Since the High Court decision, the Victorian Court of Appeal decision has provided useful guidance as to how this new approach applies in educational settings.

This article examines the Bersee v State of Victoria (Department of Education And Training) [2022] VSCA 231 case, in which a school teacher alleged psychiatric injury due to unreasonable and excessive workloads.

Mr Bersee was employed as a woodwork teacher at Williamstown High School from 2006 until October 2015, when he became psychologically unwell and unable to work. It was not disputed that Mr Bersee suffered from major depressive disorder, chronic anxiety and panic attacks arising out of his employment. Rather, the dispute centred around Mr Bersee's claim that his employer had been negligent in subjecting him to unreasonable and excessive workloads, specifically by:

• increasing class sizes in 2014 from 22 to 25 students;
• not replacing a part-time teacher who had previously assisted Mr Bersee following their retirement at the end of 2013; and
• requiring Mr Bersee to teach in a classroom that could not safely accommodate more than 22 students.

The employer disputed its actions were negligent as it argued there was not a reasonably foreseeable risk of injury until May 2015 and, that once that foreseeable risk arose, it took reasonable steps to alleviate such risk.

Much of the Court of Appeal decision centres on the question as to when the risk of injury became foreseeable, noting that:

• in 2010, an Edusafe report was submitted regarding the number of consecutive teaching periods allocated to Mr Bersee, including specific reference to the impact this had on his mental health;
• following changes to his timetable Mr Bersee was able to continue working;
• in November 2013, the School's OH&S representative sent a memo to School management regarding the impact proposed increase in class sizes would have on staff and, in particular, on staff teaching practical subjects;
• in November 2014, a further email was sent to management by the School's OH&S representative, referencing a deterioration in "stress levels" as a result of increased workloads and the lack of an assistant for practical subjects;
• in December 2014, a grievance about class sizes was lodged by the Australian Education Union, which resolved on the basis that class sizes of 25 students would be maintained;
• on 29 May 2015, Mr Bersee lodged a further EduSafe report advising that due to increased class sizes his "noise/stress and fatigue levels have risen to an unsustainable level" and his doctor thought he was showing symptoms of "sustained stress.and chronic fatigue";
• following May 2015, the School suggested replacing half of Mr Bersee's woodwork classes with humanities subjects but this was rejected by Mr Bersee; and
• during an August 2015 meeting between Mr Bersee and School management, Mr Bersee again explained he couldn't cope but would "tough it out" for the rest of the year, before taking some long service leave.

Having reviewed this timeline, the Court found psychiatric injury was reasonably foreseeable from the start of 2014, which was when class sizes were increased.

In coming to this finding, the Court considered it significant that by increasing class sizes the School had made a change to existing work practices which necessarily increased the workload of teachers.

Importantly, this consideration came against a background where the School had been informed in 2013 that any proposed change to class sizes may have a greater impact on practical subjects and they were aware that Mr Bersee was "someone who had found increases in workload difficult in the past."

As a result, the Court found that by 2014 psychiatric injury to Mr Bersee was "more than merely predictable" and that it was "not unreasonable to require an employer to have in contemplation the risk of injury of this kind in such circumstances."

Notwithstanding this finding, the Court of Appeal found that the School did not breach its duty to Mr Bersee as it took "reasonable steps" in respect of the foreseeable risk of psychological harm to him, noting:

• there was a financial rationale that justified increasing classes to 25 students, and it was not reasonable to reduce only Mr Bersee's class size;
• the School had taken steps to address the physical constraints of the classroom, including soundproofing to reduce the excess noise complained of by Mr Bersee;
• the School had offered some teaching assistance to Mr Bersee following the resignation of his former off-sider, albeit that assistance did not work out;
• the School had offered to change the composition of Mr Bersee's workload, which Mr Bersee rejected; and
• Mr Bersee had not disclosed any medical evidence in 2013 or 2014 that would suggest or indicate that the steps being taken were not sufficient.

Significance:

Even though the School was found not to be negligent, this case provides useful guidance as to when schools should be considering the psychological risks placed on their employees.

The decision makes clear that employers need to be considering potential risks to the psychiatric well-being of their employees even before an employee displays any signs of psychological distress - in this case, from as soon as class sizes were increased.

Further, the decision clarifies that an employer may need to be proactive in taking steps to avoid foreseeable risks of harm and cannot simply "meet its responsibility by acquiescing in a decision to perform the work that gives rise to the risk". In other words, just because an employee agrees to take on additional work, longer hours or more responsibilities, this does not absolve the employer of its responsibility to ensure that those additional duties do not cause a risk to the psychiatric well-being of its staff.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.