What is Duty of Care?
Duty of care is a legal concept that refers to the responsibility to take reasonable measures to prevent physical or psychological harm or injury to others. A duty of care can exist in numerous settings where one party has a responsibility to prevent harm or provide for the well-being of another. Examples of a duty of care relationship include healthcare providers and their patients, teachers and their students, and drivers and other road users.
Does my employer owe me a duty of care?
Absolutely yes! The duty of care relationship also applies between employer and employee. Employers have an obligation to provide a safe working environment for their employees, which includes implementing safety protocols and addressing hazards. Employers are required to establish and maintain a reasonably practicable working environment that is both safe and free from potential health risks.
Maintaining a safe work environment
Under Victorian law, employers have a duty to provide and maintain a healthy and safe work environment for their employees by ensuring compliance with their Occupational Health and Safety (OHS) obligations. The law also requires employers to eliminate or minimise risk where reasonably practicable to do so.
Some examples may include:
- Maintaining safe machinery and equipment
- Providing regular and sufficient training to all employees. Regular training helps employees maintain and update their skills, stay current with industry trends, and adapt to changing circumstances or technologies
- Create safety policies readily available for employee access
- Supplying workers with all the required safety gear
- Remove hazards from the workplace.
Read our case study for an example of an employer’s failure to identify hazards associated with the use of scaffold stairs.
Employers are not only responsible for ensuring the physical workplace's safety, but they also bear the duty of preventing psychological harm in the work environment. Some hazards/risks may include:
- Excessive workload
- Work-related trauma
- Bullying and harassment
- Unreasonable working hours
- High-pressure or stress
- Lack of support
Prioritising adherence to workplace health and safety regulations is essential and should consistently be a primary concern to protect your workplace.
What is reasonably practicable?
Employers will need to consider a variety of factors depending on the industry and business they operate. What is reasonably practicable for one business may vary significantly from another.
For example, the safety measures required in the construction industry may include providing extensive safety training, personal protective equipment, and strict safety protocols due to the high risks associated with construction work. In contrast, in an office environment, employers may focus on ergonomic workstations and measures to prevent repetitive strain injuries
How do I identify and manage risks as an employer?
The aim as an employer is to think about the likelihood of a hazard or risk occurring in the circumstances, and the potential harm and/or consequences of that hazard or risk.
Whilst this may seem straightforward, our team in Redlich’s Work Injury Lawyers frequently encounter workers involved in workplace injuries stemming from situations where hazards and risks could have been more effectively addressed by their employers. A common type of injury we frequently come across is related to repetitive and manual type tasks, where employers may not have adequately recognised and managed potential ongoing risks. It is important to note that a task may not initially pose a risk, but over time, it may develop into one, particularly in physically demanding and repetitive roles. In these circumstances, employers should consider:
- Changing the work environment such as providing more suitable facilities
- Rotating duties more frequently or limiting the length of shifts
- Providing adequate resources such as risk assessments and ergonomic assessments dependant on your business/industry
- Introducing stretching programs
- Ensuring employees have regular breaks
- Conducting regular health assessments
Has my employer breached their duty of care?
Whether an employer has breached their obligations and responsibilities involves assessing the specific circumstances and considering the relevant laws, regulations, and industry standards.
If you have concerns about your working conditions, safety, or any potential breaches of duty of care, you should raise this with your employer as soon as possible. You may also try and keep records of any incidents, unsafe conditions, or actions that you believe represent a breach of duty of care by your employer.
What should I do if I've sustained an injury and believe my employer has not met their obligations and responsibilities?
It is crucial to address workplace safety and duty of care concerns promptly to protect your well-being and the well-being of your co-workers. It is often a good first step to report the incident to your employer and complete an incident report detailing the circumstances and potential witnesses. You should then consider filling out a Worker’s Injury Claim Form and consult with legal professionals who can provide guidance and take appropriate action based on your specific situation.
If you have been injured and would like further advice on your employer’s obligations, please call Redlich's at (03) 9321 9988 for a free, no-obligation conversation or contact us using our online enquiry form.