Psychosocial Hazards
Expert Witness
Independent expert opinion on psychosocial hazards in the workplace. Bullying, harassment, excessive workload, role conflict and psychological injury claims. Expert assessment under the 2022 to 2024 psychosocial hazard regulations now in force across Australian jurisdictions.
Psychosocial Hazards Expert Witness Scope
Psychosocial hazards are aspects of work design, work environment, management practices and workplace relationships that create a risk of psychological injury. Since the introduction of specific psychosocial hazard regulations across Australian jurisdictions from 2022, this area has become one of the most rapidly growing categories of WHS expert witness instruction.
The expert witness role in psychosocial hazard matters is to assess whether the duty holder identified the psychosocial hazards present in the work environment, whether the risks were adequately assessed, whether reasonably practicable controls were implemented and whether the employer's response to complaints or known hazards was adequate.
Karim Ali provides independent expert opinion on psychosocial hazard matters in workers' compensation and public liability proceedings, and before the Personal Injury Commission and other courts and tribunals. Instructions are accepted for both plaintiff and defendant parties, including law firms, insurers and self-insured employers.
A New and Specific Duty Under WHS Law
Before 2022, psychosocial hazards were addressed under the general duty of care in the WHS Act. Since then, specific psychosocial hazard regulations have been introduced in NSW, Victoria, Queensland, South Australia and the ACT, with other jurisdictions following. These regulations impose specific requirements on how employers must identify, assess and control psychosocial risks.
The regulations create clear obligations that can be tested in legal proceedings. Expert opinion is increasingly required to assess whether an employer's psychosocial risk management program met the standard now required by law, and whether failures in that program contributed to a worker's psychological injury.
See the blog article on psychosocial hazards explained and the separate article on workplace bullying as a WHS issue for further background on this area.
Psychosocial Hazard Regulations 2022 to 2024
The following jurisdictions have introduced specific psychosocial hazard regulations. Each requires duty holders to take a risk management approach to psychosocial hazards as distinct from the general duty of care.
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WHS Regulations 2017: Psychosocial Hazards Amendment
New South Wales introduced specific psychosocial hazard provisions into the WHS Regulations in 2022, requiring PCBUs to manage psychosocial risks using the same risk management process as physical hazards. The Managing Psychosocial Hazards at Work Code of Practice applies in NSW.
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OHS Regulations 2017: Psychosocial Hazards Provisions
Victoria introduced psychosocial hazard provisions into the OHS Regulations in 2022 through the OHS Amendment (Psychosocial Hazards) Regulations 2022. WorkSafe Victoria's guidance requires employers to take a structured risk management approach to psychosocial hazards.
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WHS Regulations 2011: Psychosocial Risks
Queensland introduced specific psychosocial risk provisions under the WHS framework. The Managing the Risk of Psychosocial Hazards at Work Code of Practice applies and sets out the required risk management process for identifying and controlling psychosocial hazards.
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WHS Regulations: Harmonised Psychosocial Provisions
South Australia and the ACT adopted psychosocial hazard regulations aligned to the model WHS framework. Other jurisdictions including Western Australia are at various stages of implementation. The expert analysis identifies the specific provisions applicable in the relevant jurisdiction.
Hazards Identified by Safe Work Australia
Safe Work Australia has identified 14 categories of psychosocial hazard in its model code of practice. The expert analysis identifies which of these hazards were present in the specific workplace and assesses the employer's response to each.
Bullying, Harassment and Work Demands Assessment
Two categories of psychosocial hazard are particularly common in legal proceedings: complaints involving bullying and harassment, and claims involving excessive workload or role conflict. The expert analysis addresses each category with reference to the specific facts of the matter and the applicable code of practice.
In bullying and harassment matters, the analysis assesses whether the conduct alleged constituted a psychosocial hazard under the applicable legislation, whether the employer had adequate policies and complaint procedures, whether complaints were handled appropriately and whether the employer took reasonably practicable steps to address the hazard once it was identified or reported.
In workload and role conflict matters, the analysis assesses the actual demands of the role against the worker's capacity, whether workload concerns were raised and how they were responded to, whether the work design created a foreseeable risk of psychological injury and whether the employer's monitoring of worker wellbeing was adequate.
- Whether the conduct alleged meets the definition of bullying under the WHS framework
- Whether the employer had a policy and complaint procedure adequate for the workplace
- Whether complaints were investigated promptly and by a competent person
- Whether corrective action was taken following a complaint or investigation finding
- Whether the employer's response to the complaint created additional psychosocial risk
- Whether the employer monitored the ongoing wellbeing of the complainant
Evidence Typically Reviewed in Psychosocial Matters
Psychosocial hazard matters involve a distinctive set of documentary evidence. The following are those most commonly reviewed.
- Workplace bullying and harassment policies and procedures
- Complaint records, investigation reports and outcomes
- HR records including performance management documentation
- Employee Assistance Program (EAP) usage records
- Workload records, rosters and overtime data
- Engagement surveys, pulse checks and culture audit reports
- Manager and worker training records on psychosocial hazards
- Correspondence between the worker and management
- Medical records and treating practitioner reports
- WorkCover or workers' compensation claim documentation
Reasonably Practicable Controls
The code of practice requires employers to take a structured risk management approach to psychosocial hazards. The expert analysis assesses whether this approach was applied and whether the controls implemented were reasonably practicable in the circumstances.
The employer is required to identify psychosocial hazards in the work environment through consultation, surveys, review of incident and complaint data and direct observation. Failure to identify known or foreseeable hazards is itself a breach.
The employer must assess the likelihood and severity of harm from each identified hazard, taking into account the nature of the work, the duration and frequency of exposure and the characteristics of the workforce. A formal psychosocial risk assessment is the expected approach for higher-risk workplaces.
Controls for psychosocial hazards include work design changes, management training, consultation mechanisms, complaint procedures, workload management systems and access to support resources. The analysis assesses whether the controls implemented addressed the specific hazards identified.
The employer must monitor the effectiveness of controls and review them following incidents, complaints or changes to the work environment. The analysis assesses whether the employer had a monitoring system and whether it was adequate to detect emerging psychosocial risks.
Foreseeability of Psychological Injury
A central issue in many psychosocial hazard matters is whether the psychological injury suffered by the worker was a reasonably foreseeable consequence of the employer's conduct or the work conditions. The foreseeability assessment addresses what the employer knew or should have known about the psychosocial risks present in the workplace.
Foreseeability in psychosocial matters is assessed against the information available to the employer at the relevant time, including prior complaints, medical certificates, changes in the worker's behaviour, workload data, industry knowledge and the findings of any engagement surveys or audits conducted. An employer who has received complaints, observed warning signs or been told of a worker's distress is in a different position from one who had no notice of a problem.
- Prior complaints or grievances lodged by the affected worker
- Medical certificates and notifications received by the employer
- Engagement survey results showing elevated psychosocial risk
- Absence or turnover data indicating workplace stress
- Industry or occupational knowledge of psychosocial risk in the role
- Known interpersonal conflicts involving the affected worker
- Prior WHS regulator notices or improvement notices
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How does the WHS expert opinion differ from the psychiatric expert opinion?
The psychiatric or psychological expert addresses the nature of the injury, its diagnosis, causation in a clinical sense and the worker's prognosis and capacity. The WHS expert addresses whether the work environment contained psychosocial hazards, whether the employer managed those hazards adequately, whether the employer's response to complaints was sufficient and whether the psychological injury was a foreseeable consequence of the work conditions. Both opinions are typically required in psychosocial injury proceedings.
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Can Karim assess a matter where the bullying allegation is disputed?
Yes. Where the underlying conduct is disputed, the analysis can be prepared on stated factual assumptions about what conduct occurred. The analysis can also address the employer's obligations regardless of whether the alleged conduct is established. Even where a bullying allegation is ultimately not substantiated, the employer's failure to investigate a complaint promptly and competently may itself constitute a failure to manage the psychosocial risk.
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Does the new regulations analysis apply to historical matters?
The specific psychosocial hazard regulations apply from their commencement dates in each jurisdiction. For matters predating those regulations, the analysis is conducted under the general duty of care provisions of the WHS Act or the applicable state legislation. Even before the specific regulations, employers had obligations to manage psychosocial risks as part of their primary duty of care. The applicable standard depends on when the relevant conduct and injury occurred.
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Can the expert assess a claim involving sexual harassment as a WHS issue?
Yes. Sexual harassment is identified as one of the 14 psychosocial hazards in the Safe Work Australia model code of practice. The WHS expert opinion addresses the employer's obligations to prevent sexual harassment as a psychosocial hazard and whether those obligations were met. This is distinct from but may run alongside any equal opportunity or anti-discrimination claim.
Instruct on a Psychosocial Hazard Matter
Contact Karim Ali to discuss the matter, confirm availability and obtain a fee estimate for the expert opinion.