The recent decision of Govier v Unitingcare Community  QDC 56 reinforces that for an Employer (including all employers in the health industry) to be found liable for a breach of their duty of care to a worker, the employer must be given very specific notice of the likelihood of a pure psychiatric injury developing in order to find that such an injury was a foreseeable result of the employer's action or inaction. It further reaffirms that a duty to take reasonable care does not apply in relation to a workplace investigation of a worker.
The Plaintiff worked as a disability worker for Lifeline Community Care Queensland. On 3 December 2009, an altercation occurred between the Plaintiff and a co-worker when the co-worker assaulted the Plaintiff at the end of her shift. The Plaintiff alleged she feared she was going to die.
The Plaintiff suffered a chronic post traumatic stress disorder and a major depressive disorder when given letters by her employer to attend an interview about the incident and to show cause why her employment should not be terminated as a result of the event.
A history of issues existed between the Plaintiff and the co-worker extending over a number of months. They concluded with the assault.
The issues before the Court were:
- Whether the employer breached its duty to the Plaintiff, including rostering the Plaintiff together with the co-worker.
- Whether the employer's insensitive first letter and critical second letter to the Plaintiff regarding her employment involved a breach of duty.
The first issue revolved around what knowledge the Employer had of the issues between the Plaintiff and her co-worker, including four prior specific incidents of assault. The Plaintiff alleged the co-worker had assaulted and physically obstructed her and therefore the Employer was put on notice. This included the employer being aware the co-worker behaved in an "erratic, unpredictable, hostile, aggressive and confrontational manner towards employees, including the Plaintiff".
The Court accepted the Plaintiff wrote to her Supervisor on 20 October 2009 complaining about various incidents and requested separate shifts. The Court found however the four "more significant" complaints were first raised during the trial in amended pleadings.
The Plaintiff agreed that prior to the assault, she asked her supervisor not to put in a formal complaint if they could resolve their issues at mediation. Mediation was attempted on 14 October 2009 between the Plaintiff, co-worker and Supervisor at which the Plaintiff walked out because the co-worker got angry and raised her voice. The Count found the Supervisor formed his own opinion following the mediation that the co-worker 'had a mental health problem' and also that the oral complaints made to the Supervisor were found to be 'petty'.
In relation to issue 2, whilst in hospital on the day of the assault, the Employer sent a letter to the Plaintiff requesting she attend a meeting the following day to discuss the incident and stating that she was stood down on leave without pay pending the outcome of the investigation. A further meeting was arranged when the Plaintiff said she could not attend due to her injuries and she was asked to show cause why she should not be terminated from her position.
The Employer argued it did not owe a duty of care to the Plaintiff with respect to issuing the letter and also the content of the letter was in relation to matters "incidental to the contract of employment" and they relied upon State of New South Wales v Paige  60 NSWLR 371 where at  the 'proposed duty' to take care during the investigative process should not be recognised.
In regards to the assault, the Court found the Plaintiff did not establish the Employer had notice that the co-worker had a propensity for a physical assault. No evidence had been led, in the letter by the Plaintiff to the supervisor or otherwise, that the assault by the co-worker on the Plaintiff was reasonably foreseeable by the Employer.
Regarding foreseeability, the Court found that the employer had, on receipt of the Plaintiff's complaint, appropriately responded with attempted mediated resolution and shift changes to avoid 'crossovers' by the Plaintiff and co-worker. Following the unsuccessful mediation, there were no ongoing complaints and the issued was deemed concluded. Accordingly it was held that it was not foreseeable to the employer that the plaintiff would be at risk of being assaulted by the co-worker and that the employer was not on notice of this potential risk.
However, the Court concluded the Plaintiff's psychiatric injury did arise as a result of the content of the letters, that the injury was reasonably foreseeable and that the employer failed to take reasonable care. But, the Court found that no duty arose by the service of the letters requesting an interview as part of an investigative process about potential misconduct arising from an alleged assault during the course of employment.
The Plaintiff's claim was therefore dismissed. However, we understand that the decision is now being appealed to the Supreme Court, so we'll provide further updates in due course.
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