LEGAL

Lawyer sues employer over psychological injury in groundbreaking High Court decision

June 2, 2022

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This lawyer claims her employer failed to protect her from psychological injury at work after developing post-traumatic stress disorder due to the nature of her work.

This article mentions sexual offences and suicide. If you or someone you know needs immediate support, you can call Lifeline on 13 11 14. If you’re looking for general support resources, we’ve included a list at the end of this article.

Zagi Kozarov had been working in a job that she loved with the Victorian Office of Public Prosecutions (OPP) for two years when work started taking its toll.

As a solicitor working in the Specialist Sexual Offences Unit (SSOU), she was witnessing disturbing images and stories that were “abhorrent in nature”, according to a recent High Court decision. She had to familiarise herself with statements, videos and audio files of graphic and disturbing content and often dealt with minors, which was particularly disturbing.

On top of this, she was also working intense, long hours.

In February 2012, Kozarov developed a psychological injury (post-traumatic stress disorder) which later developed into a major depressive disorder which she claims were a result of her exposure to traumatic materials.

Speaking to the ABC, Kozarov said she became “possessive and paranoid about her own children’s wellbeing” and that she became “hyper vigilant” about their safety.

Court notes outline how work impacted her sleep, made her fearful and prone to intrusive thoughts, and resulted in panic attacks, loss of confidence and ambition, de-personalisation and reduced social contact.

The OPP stated that February 2012 was the first time it was made aware of Kozarov’s deteriorating mental state. However, a recent High Court decision outlined the employer was notified of her struggles seven months prior to this.

In February 2012, the OPP attempted to find Kozarov another position within the organisation that didn’t deal with sexual violence, but was unsuccessful.

After three years working in the SSOU – following a period of leave to tend to her wellbeing and unsuccessful attempts to create an adequate return-to-work plan – Kozarov left the OPP and decided to pursue legal action.

In 2017, a Supreme Court decision sided with Kozarov, but in 2020 this decision was overturned on appeal. However, after taking the matter to the High Court, the original Supreme Court decision was upheld and Kozarov was awarded $435,00 in damages for negligence.

Speaking to HRM, the OPP stated: “Since the time of Ms Kozarov’s employment in 2011 and the Victorian Supreme Court’s original decision in February 2020, the OPP has made significant changes to our organisational structure and operations. The OPP is in the process of implementing new workload guidelines which will ensure that sexual offence prosecutions do not constitute more than 60 per cent of a lawyer’s overall workload.

“The OPP is committed to continually monitoring and improving our practices and implementing measures that will provide a psychologically safe workplace for all our staff, including the provision of additional expert support where needed. Training in dealing with vicarious trauma is regularly offered and all managers complete mental health awareness training.”

This decision could very well pave the way for better approaches to vicarious trauma management in workplaces where employees are exposed to emotionally fraught situations, such as emergency responders, social workers and psychologists.

Speaking to HRM, Will Snow, Partner at Finlayson, says, “This is a really, really important case. You look at someone and you might think, ‘You work in a commercial law firm, when would you see trauma?’ Well, they see it often. This stuff can come up in anyone’s role,” he says.

“Physical risk factors have been quite well understood to date, like working in confined spaces, lifting techniques and working from heights. An increasing trend now, from jurisdictions and also from guidance from safety regulators, is to manage psychosocial risks with the same rigour and process.”

This means considering things such as: do you have adequate grievance policies in place? How do you handle conflict between staff? And, in this case, what protocols are in place to manage exposure to traumatic situations?

Combating compassion fatigue

A key part of the 2020 appeal decision was an email from Kozarov to her employer in which she outlined how much she loved her work. At the time, the OPP suggested this made it difficult for managers to know the truth of Kozarov’s experience of work.

However, this ignores a glaring red flag. Just because you love what you do, that doesn’t mean it can’t have detrimental impacts on you. In fact, it’s often the people who love their jobs that are most prone to burnout. Emotionally draining work attracts certain personalities – those who feel a sense of duty to the people they’re serving. And it’s these people who are most likely to fall victim to compassion fatigue.

“This case talks about [Kozarov’s] dedication to her job,” says Snow. “Often people who work in areas supporting people in crisis have an absolutely amazing passion for their work. These people can have such a strong personal motivation that they’ll just keep on going until they drop.”

Snow says the fact that Kozarov’s role was highly specialised matters in this case too, as it may have added to her sense of duty. There was unlikely to be a wealth of people who could step in to relieve her on a stressful day.

While compassion fatigue is common in the industries already mentioned, Snow says it’s important for HR to remember that it can happen in any work environment – even to HR professionals themselves.

“HR and managers could have to hear about some really distressing stuff,” he says. “You might be in a position where an employee confides in you about feelings of self-harm, their mental health concerns or perhaps that they’re experiencing family and domestic violence.

“Anyone can be exposed to trauma.”

(See HRM’s guide to addressing domestic violence at work).

The presence of a policy isn’t enough

The High Court placed emphasis on the fact that the OPP had been notified of the risks to Kozarov’s mental wellbeing months before she was diagnosed with PTSD.

The OPP also had an existing policy to manage vicarious trauma.

In order to change roles, employees of the SSOU were required to apply for advertised internal roles, which was contrary to its own policy which stated that SSOU employees should be rotated every two years.

However, the court documents note that “none of the protective measures identified in the [vicarious trauma] policy, or indeed any other reasonably available preventive or protective measures, were implemented by Ms Kozarov’s managers.”

It also states that Kozarov’s managers weren’t aware of the terms of the vicarious trauma policy. If Kozarov had been offered occupational screening to assess for wellbeing risks prior to developing PTSD, the court suggests she would have done it and the risks to her mental health would have likely been identified and remedied.

“Often people who work in areas supporting people in crisis have an absolutely amazing passion for their work… they’ll just keep on going until they drop.” Will Snow, Partner, Finlaysons.

Regardless of whether or not the OPP policy was made available to employees, speaking broadly, Snow says, “It’s not enough to say that there might be some industrial consequences [of rotating staff], or it’s not convenient for our current reporting lines. If the safety advice is that people have to be rotated in and out of these roles, because the role is just way too heavy to do for a long stretch of time, then you’ve got to do everything you can to make that happen.

“Some people will argue that a policy is a term of their employment, therefore if you don’t follow that policy, they could say you’ve breached that contract.”

However, if an employee has visited a psychologist for assessment and still chooses to continue in the role, you’ve probably adequately exercised your duty of care, says Snow.

Also worth noting is the fact that in April 2011 SSOU staff, including Kozarov, signed and distributed a memorandum detailing their concerns about the stress they were experiencing at work, and stated that they felt overworked.

While this isn’t directly related to Kozarov’s vicarious trauma experience, it should have prompted the OPP to look into making its policy widely available to SSOU staff, says Snow.

What can HR take from this psychological injury case?

When someone is in the midst of a stressful situation, they’re not always the best person to identify risk factors or assess the ongoing safety of work, says Snow.

Employers are responsible for taking reasonable steps to assess any psychological risks that work could pose for employees.

“There are preventative measures and then there are symptomatic measures. We’re getting better at symptomatic measures – people being supported to use personal leave whenever they need to and giving people access to an EAP.”

The preventative measures speak to the cultural mechanisms you put in place to discuss and respond to mental health at work, the way you approach disclosure processes and the tools you offer managers to deal with issues effectively.

“EAPs are there for acute, symptomatic issues, but it’s also a fantastic resource for managers to ask questions about how they can give more support or start conversations. If someone has disclosed that they’re experiencing domestic violence, for example, how should [managers] approach that conversation?”

To add the necessary rigour and attention that these issues deserve, Snow says to think of it in the same way you would physical workplace risks.

“If I work in a warehouse operating a forklift and I get a spinal injury, which means I can’t look behind me because my movement is restricted, then I can’t do that work. In the same way, if someone is psychologically vulnerable, and you know that, you need to consult a medical professional to figure out how that work can continue safely.”

That might be a reduction in workload, it might be a job-sharing arrangement, it might be rotating between roles after a certain period of time, or scheduling in psychologist sessions each week.

Finally, it’s really important that all workplaces are well equipped to manage trauma disclosures. Snow says this not just as a point of advice, but from personal experience.

“I had a client who took his own life. I was the last person that he spoke with. That sparked a depressive episode for me. I got great support from my workplace. I got in touch with the EAP and my GP and had some time to reflect on it. My employer really supported me to have some time off and said, “Don’t worry about work – it can wait.”

“This is a really good example of a work culture where I felt comfortable disclosing that. Any of us can be exposed to trauma. We often have to deal with difficult, sensitive and sad information.”

If you’d like more resources on starting these important conversations with employees and preventing psychological injury at work, here is a list of resources that could help: