Are you considering starting up your own business? If so, you might want to give some thought to the duty of care you will owe to your employees. This is a primary consideration for any business owner.

Currently, both state and federal legislation, along with common law precedent, assist is protecting employees whilst in the workplace. Employers have certain responsibilities towards their staff to ensure that they are not injured or harmed in any way while at work carrying out their duties.

If an employer is found to have been negligent or to have failed to uphold this duty of care, he or she may be liable to the employee for breaching of the duty of care. For anyone considering starting a business, workplace safety and employee welfare should be at the top of your list to help you manage and reduce your liability.

Compensating an employee

If, ‘during the course of employment’:

  1. an employee becomes injured, and
  2. the type of work being done substantially contributed to the physical or emotional harm suffered, then
  3. the employee may have grounds to initiate legal action against his or her employer,
  4. provided it can be shown that the employer was negligent in carrying out his or her duties.

It is worth noting that the large majority of employees in Australia will benefit from basic WorkCover. This is in the form of weekly payments/medical treatment.  It applies even if the employee became injured as a result of his or her own behaviour.

Scope of cover

Generally personal injuries are covered under the relevant state legislation.

For example, under the Worker’s Compensation and Rehabilitation Act (Qld), an injury is defined as:

  • A disease that was contracted ‘during the course of employment’ (whether or not physically at work) when the type of work being undertaken significantly contributed to contracting the disease; or
  • If you have a disease, injury, or medical condition that gets worse ‘during the course of employment’, and the type of work being undertaken significantly contributed to the worsening of the employee’s condition.

While it is possible to make a claim against your employer for psychological harm that arises ‘during the course of employment’, this is only possible when the actions of the employer were not reasonable in the circumstances. Under section 11A of the Workers Compensation Act (NSW), the types of actions that cannot be relied upon for a claim of compensation for breach of employer’s duty of care include:

  • Demotion;
  • Performance reviews;
  • Disciplinary action;
  • Dismissal;
  • Promotion; and
  • Redundancy.

In other words, if any of the above events caused you psychological harm, you may not have a claim for compensation against your employer.

Having insurance is a must

All employers should have insurance policies in place so that, in the event something goes wrong and someone is injured while at work, the liability costs will be covered, i.e. worker’s compensation. The wage bill typically helps determine the premiums that employers pay on their insurance policies.

If an employee is injured and the employer has no insurance, the employee may make a claim to the relevant WorkCover authority of the particular state. Failing to take out insurance is a serious problem and can result in an employer being criminally liable.

Conclusion

It is a legal requirement of all employers to take reasonable steps to ensure the safety of their employees. If an employer does not observe a reasonable standard of care, and provide all necessary safety equipment and information to the employees, they risk not upholding their duty of care. This standard may include instructing the staff in training sessions on how to manage different safety scenarios. The level of care that is required may differ depending on the type of work, the size of the workplace, and the level of risk involved on a daily basis during the course of employment.

For legal assistance from an employment lawyer, contact LegalVision on 1300 544 755. Our team of employment lawyers will happily advise you on whether or not you have an issue or claim around employers’ duty of care.

Ursula Hogben

Ask Ursula a Question

If you would like further information on any of the topics mentioned in this article, please get in touch using the form on this page.