Latest occupational violence and aggression litigation trends

The following article is a news item provided for the benefit of the Workplace Health and Safety profession. Its content does not necessarily reflect the views of the Australian Institute of Health & Safety.
Wednesday, 30 March, 2022 - 12:15
Industry news
National News

Although there are various standards and guidelines published on risk and occupational violence and aggression, there are a number of consistent trends in litigation and incidents that can often be traced to poorly developed or an absence of essential elements within systems of work, according to an expert in the area.

“Occupational violence and aggression is well-reported across most societies and has attracted widespread attention including from areas of government, safe work regulators and industry bodies,” said Tony Zalewski, director of security and safety risk management consultancy Global Public Safety Pty Ltd.

“As litigation across Australia increases, many cases of occupational violence and aggression have entered the court system, mostly involving personal injury claims where there has been a death or serious injury in addition to cases of nervous shock.”

Zalewski, who was speaking ahead of the AIHS National Health and Safety Conference which will be held from 25-26 May 2022, said that although employers as duty holders have a legal requirement to provide and maintain a safe and healthy working environment for employees and others at work, so far as is reasonably practicable, the process of litigation often exposes vulnerabilities associated with safe work systems (this includes the physical and psychological environment).

Some industry sectors experience higher levels of occupational violence and aggression than others, according to Zalewski, who said prominent across the data are workers performing public-facing roles such as in healthcare, support services, public or private policing, hospitality and retail.

“Younger workers are also prevalent in reported data albeit many industries under-report or have different definitions of ‘occupational violence and aggression’ so the true level of occupational violence and aggression incidents generally remains unknown,” he said.

Some violent incidents appear to be less industry-specific, especially in the area of domestic violence and Zalewski said US data reveals one out of every four American women report physical abuse by an intimate partner in their lifetime.

“Put simply, domestic violence does not stay at home when victims attend work. This is a hazard now more commonly recognised across Australian workplaces,” he said.

Those organisations with high levels of reported violence tend to have better systems and therefore more effective approaches to managing violence.

For example, in hospitals, Zalewski said “code grey” teams are specially selected and trained to respond to escalating aggression. Frontline staff in the support services also tend to have occupational violence and aggression training and guidelines to avoid or minimise the impact of violent incidents.

“Unfortunately, litigation exposes those organisations that have not adequately turned their minds to occupational violence and aggression risks,” said Zalewski.

“Many personal injury cases have arisen where workers have suffered an injury based upon staff conflicts, customer/client aggression, domestic violence and violent crime such as robbery.”

The most common challenge for employers is the absence of a formalised and appropriate system of work in the context of risk, Zalewski explained.

“Often, there is an absence of a risk assessment with suitable controls or a checklist completed that fails to have a situational focus for occupational violence and aggression,” he said.

“Often, occupational violence and aggression is not fully addressed by rather is managed under approaches to conflict management or customer service.”

Each workplace will have operational and administrative variations based upon the local environment, physical design, the operational workforce and how those variations are addressed.

“Of course, culture, working conditions, the approach to safety, work priorities, resourcing and the like will also remain a common challenge but in need of treatment,” said Zalewski, who noted litigation provides excellent case studies from real incidents.

“It also involves the testing of evidence across the parties either through experts in pre-trial proceedings or actual court proceedings where workers, employers, managers, experts and other witnesses are called to provide evidence,” said Zalewski, and he explained that litigation usually flows from the following:

  • An absence of a formalised system of work with protocols that effectively guide staff and minimise the exercise of discretion;
  • Deficiencies in consultation with workers who are often faced with daily occupational violence and aggression-related hazards;
  • A poor work culture where staff generally accept occupational violence and aggression as part of the job;
  • A lack of suitable or adequate training such as not understanding the signs of agitation, escalating behaviours or pre-assault cues;
  • Deficient training where high-level aggression leads to a physical confrontation and staff are unable to safely respond;
  • High levels of under-reporting effectively means incident history is unknown and system vulnerabilities go unchecked; and
  • Failures to debrief with staff involved in incidents;

Zalewski said there are a number of important lessons for OHS professionals in the above, and he recommended they ensure:

  • Formalised work systems that minimise the exercise of discretion in the high-risk area of occupational violence and aggression;
  • Enhanced safety culture and staff awareness to eliminate or minimise the risk of occupational violence and aggression incidents. This should include incident reporting, staff debriefing and data review;
  • The physical work area is safe. Considerations are essential for strategic design, placement of barriers and other protections, emergency communication systems, removal of dual-purpose weapons, securing furniture, planning for a reactionary gap and safe withdrawal options;
  • Staff are inducted and trained against protocols that have been developed from a situational risk assessment. The work system should have a strong focus on individual and team development that includes understanding human behaviour, the impact of effective communication and tactical options should an incident escalate to physical violence;
  • Ensure training is realistic to the hazard through a competency-based approach. Online training has limitations, especially in operational areas of confrontation when a dynamic risk assessment and response is required;
  • Understand the importance of training for skills acquisition as workers need to develop competence through cognitive, associative and autonomous modes; and
  • Confirm learning for the organisation and its valuable team members remains current and appropriate.

Zalewski will be speaking at the AIHS National Health and Safety Conference, which will be held from 25-26 May 2022. His presentation will discuss trends in litigation with a view to identifying and highlighting critical factors necessary to eliminate or minimise occupational violence and aggression -related incidents across all workplaces. For more information call (03) 8336 1995, email or visit the event website.