Employee Welfare Must Come First For NFPs

Charities are being called on to put their employees first or risk legal or reputational ramifications.

Leading not-for-profit law firm Paxton-Hall has urged charities to prioritise the treatment of employees in the wake of a Supreme Court ruling which saw a youth service provider forced to pay more than $1.5 million in damages for breaching its duty of care to an employee.

Paxton-Hall lawyer Nicole Shenfield said treating employee welfare as a mere “box-ticking exercise” was not sufficient and organisations whose focus was on helping those in need could have their priorities skewed.

“All employers owe their employees a duty of care to ensure a safe work environment,” Shenfield  told Pro Bono Australia News.

“The sector itself is so much concerned about making a difference that this has sort of been neglected in a sense, or hasn’t been given the attention that it really does deserve and need.

“Where you have got a charity who is purposed to look after those most in need and you are trying to get people out of horrible situations and improve their life, you are going to be the kind of person who will continue to try and do that because you are committed to it. You have an emotional or a sense of real commitment to seeing that person do their best which in a sense can lead that employee and also the management and employer to fail to recognise what their other duties are.

“Their duty is not only to seeing out that channeled purpose and assisting those individuals in bettering their life and situation…[It] can not be at the expense of neglecting that other duty they have to their employee.”

The push to get employers putting their employees first comes after the Supreme Court of Queensland found Brisbane Youth Service Inc had breached its duty of care, resulting in an employee sustaining psychiatric injuries from sexual assault.

Shenfield said the case, the first of its kind to reach the Supreme Court, highlighted a difficulty faced by charities charged with assisting vulnerable people.

“The decision handed down found a youth service provider failed to appropriately recognise and mitigate the increasing risk that one its long-term clients posed to its employees,” Shenfield said.

“What it showed the NFP world was that regardless of any social expectation the charity may have, the social value does not displace an employer’s duty of care to employees.

“This case highlights a difficulty faced by charities which are charged with assisting vulnerable people who have suffered over their lives and who are most at risk of destructive and antisocial behaviour.

“For some charities in particular, their mission is to provide care and support to those in the community who need it the most and while that’s a massive focus for many charities they have to remember their organisation is only as good as the people working for them.

“In the sense of this recent decision, it was just a very unfortunate case because everyone was trying to get this one client out of an awful situation and that’s very commendable, it just so happened that it got to a point where there should have been a realisation or an assessment made that this is becoming too much of a risk to our staff, and we cannot assist this person any further without jeopardising our staffs safety and emotional wellbeing.”

Shenfield said employers knew they needed to take reasonable care to avoid things like injury in the workplace, but more thought needed to go toward how this applied in real life employment situations.

“It’s got to be a cultural thing within the organisation,” she said.

“It is something that has to come from management down into the rest of the culture so that other staff can make sure they look after their colleagues and make sure that when they have these meetings with lower levels of management where they discuss their clients, it’s a free conversation and it’s understood that yes, we are trying to make sure that this person is treated appropriately but at the back of everyone’s mind it is very clear that, is this ok for us to do, how is the staff member coping, should we continue to treat this person.

“Policies, procedures, practices, they’re all, and this goes for all sort of legal compliance, they’re good but you can have the best policies in the world but if it is not culturally ingrained then you’re not going to get the practices to mean that you identify the risk and appropriately deal with it.”

Shenfield said employers were obligated to be across their staff’s working environment at all times and needed to continually carry out appropriate risk assessments.

“It’s critical employment risks for employees are continually identified, assessed and strategies are developed to ensure an appropriate response is known,” she said.

“As job descriptions or company scope grows and evolves over time, so to do the potential risks involved, particularly when you are dealing with vulnerable members of society whose own personal circumstances may change.

“The evolving workforce means many employers will have their duties increased overtime and if they are not aware of the environment they are working in at any given moment, they are at risk.

“Employers should plan to assess these frequently, and match the risks against employee knowledge, resilience and other risk management strategies.

“What constitutes reasonable care is simply a matter of fact and this may evolve as the undertaking of the risks of certain types of employment develops over time.”