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.


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.

COVID-19 Business Survey
LegalVision is conducting a survey on the impact of COVID-19 for businesses across Australia. The survey takes 2 minutes to complete and all responses are anonymous. We would appreciate your input. Take the survey now.

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.

The majority of our clients are LVConnect members. By becoming a member, you can stay ahead of legal issues while staying on top of costs. For just $199 per month, membership unlocks unlimited lawyer consultations, faster turnaround times, free legal templates and members-only discounts.

Learn more about LVConnect

Ursula Hogben
Need Legal Help? Get a Free Fixed-Fee Quote

If you would like to receive a free fixed-fee quote or get in touch with our team, fill out the form below.

  • By submitting this form, you agree to receive emails from LegalVision and can unsubscribe at any time. See our full Privacy Policy.
  • This field is for validation purposes and should be left unchanged.
Our Awards
  • 2019 Top 25 Startups - LinkedIn 2019 Top 25 Startups - LinkedIn
  • 2019 NewLaw Firm of the Year - Australian Law Awards 2019 NewLaw Firm of the Year - Australian Law Awards
  • 2020 Fastest Growing Law Firm - Financial Times APAC 500 2020 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review 2020 AFR Fast 100 List - Australian Financial Review
  • 2020 Law Firm of the Year Finalist - Australasian Law Awards 2020 Law Firm of the Year Finalist - Australasian Law Awards
  • Most Innovative Law Firm - 2019 Australasian Lawyer 2019 Most Innovative Firm - Australasian Lawyer
Privacy Policy Snapshot

We collect and store information about you. Let us explain why we do this.

What information do you collect?

We collect a range of data about you, including your contact details, legal issues and data on how you use our website.

How do you collect information?

We collect information over the phone, by email and through our website.

What do you do with this information?

We store and use your information to deliver you better legal services. This mostly involves communicating with you, marketing to you and occasionally sharing your information with our partners.

How do I contact you?

You can always see what data you’ve stored with us.

Questions, comments or complaints? Reach out on 1300 544 755 or email us at

View Privacy Policy