With the passage of the Labour and Industry Act 1953 (Victoria) (1953 Act), Victoria became legislatively concerned with a safe workplace. As in other Australian jurisdictions, the 1953 Act reflected British laws. The purpose was to ensure employers provided a safe workplace for every employee.

At the time, the safety eye was not focused upon what could happen in an office, in court buildings, or at Parliament, but rather at locations like construction sites, factories, and industries that were traditional strongholds for worker organisation.

Mental health was a young field, still exploring conditions society now accepts as prevalent in the community. Equally, people were heavy on sideways glances and hushed tones when discussing post-traumatic stress disorder (PTSD), stress, anxiety, and depression. Mental ill health was seen as shameful. Women’s mental ill health was further delegitimised as “hysteria”. From an equality perspective, let’s face it, it took until 1980 for the American Psychiatric Association to remove “hysterical neurosis” from its Diagnostic and Statistical Manual of Mental Disorders.

The modern era

Early workplace safety legislation followed the economic path of protecting the ports, transport, and food production. However, by 1985, Victoria’s attention turned to “… promot(ing) and improv(ing) standards for occupational health, safety and welfare; …” and “... securing the health, safety and welfare of persons at work ...” in the Occupational Health and Safety Act 1985 (Victoria) (1985 Act).

Women’s skills upgraded from the 1953 Act’s equivalence to children or an adolescent male.

The introduction of the 1985 Act came in the wake of the Sex Discrimination Act 1984 (Cth), albeit women were still not permitted to obtain a credit card or medical procedure without the imprimatur of a father or husband. Then and now, when considering the combination of unpaid and paid work, women are a dominant economic force.

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A Sweep of Change?

Fast forward to 2020.

The legal profession’s attention turned to what could and did happen to women in their workplaces, including the High Court of Australia. And, indeed, in workplaces that were central to the functioning of society and wielding significant power and wealth.

While undoubtedly, some were truly shocked that laws existed to cancel such discriminatory behaviour, a majority silently wept into our hands, holding our ever-heavy heads. We can hear the refrain: “How long will it take for the powerful to practise the laws they create, govern, interpret, and apply?!”

That question is a central driver for volunteer organisation The Dear Sir(s) Project. We consider the question to be the impetus for the inaugural Women in Law Forum hosted by Lawyers Weekly on 24 November 2022. Between that question and Kozarov v State of Victoria [2022] HCA 12 (Kozarov) lies the possibility of a future we and the next generations deserve.

Kozarov

Under our nose

As recently as February 2022, the High Court declared that when an employer’s attention is adverted to an amassing injury, harming an employee by requiring them to continue in the ordinary course of their work is not satisfactory conduct. Specifically, where an employee’s duties may produce an obvious and inherent risk of psychiatric injury, and the employer is (or should be) aware, a duty of care arises on the part of the employer to take steps to reduce this risk.

An employer’s duty of care to protect employees from psychiatric injury is not a new concept in law. Protection of labourers historically stems from horrendous abuses to people in the name and pursuit of profit. The aphorism about canaries and coal mines is not merely a fanciful phrase.

Health has included mental health in Victoria since 22 December 2004. Arguably, this definition was a clarification of the role item 35 played in the schedule of the 1985 Act authorising the regulations to “… [p]rescrib[e] standards [for] ... any physical biological chemical or psychological hazard. ...”

So how did the circumstances of Kozarov arise right under our nose?

Bubbling to the Surface

Between June 2009 and April 2012, the Specialist Sexual Offences Unit (SSOU) of the Victorian Office of Public Prosecutions (OPP) employed Ms Kozarov as a solicitor prosecuting allegations of child rape and gross depravity. In April 2011, in connection with her duties, Ms Kozarov’s mental health declined, such that she began to demonstrate behaviours consistent with PTSD.

By February 2012, after an extended period of early starts, 1:00am finishes, and a gruelling trial workload of instructing in four matters additional to her daily duties, Ms Kozarov was diagnosed with PTSD and major depressive disorder (MDD). Ms Kozarov’s diagnosis was attributed to the vicarious trauma she suffered from employment.

In Kozarov v State of Victoria [2020] VSC 78, Jane Dixon J found the nature and intensity of the SSOU’s work carried an obvious risk of psychiatric injury from exposure to vicarious trauma. In discussing vicarious trauma, Her Honour extracted portions of the OPP’s own Trauma Policy and Employment Contract to demonstrate that it should have been aware Ms Kozarov was a person who may experience a workplace injury.

On 24 November 2020, in State of Victoria v Kozarov [2020] VSCA 301, the Victorian Court of Appeal overturned that decision. In paragraph [7], the Appeal Justices determined that Dixon J had erred in finding that a reasonable person in the position of the respondent: “… would have adverted to the evident signs regarding the appellant and observed that she was failing to cope with her allocated work and that her mental health was at risk ...”

We note the Court of Appeal’s language included terms such as “histrionic” and “loaded” to describe Ms Kozarov’s reaction to her supervisor’s assertion that she was not “coping” with her workload. Historically, “histrionic” and “hysterical” are terms generally preserved for women.

Is it that Ms Kozarov was “histrionic” or “hysterical”?  Or, did she experience an integrity gap? An integrity gap is the behavioural gap between knowledge of the conduct rules and, the law, and the daily practice of pursuing client and firm outcomes at the risk and expense of staff health. Kozarov demonstrates that the High Court may echo a similar sentiment.

The High Court confirmed the respondent’s officers who managed the SSOU were duty-bound to exercise reasonable care to protect Ms Kozarov against risks to her mental health that were known to the respondent. The failure to do so caused Ms Kozarov’s illness.

The integrity gap and equality trap

Heads in the sand

Occupational health and safety has been on the legal radar for as long as it has been law. At no time have Victorian work safety laws excluded industry sectors or professions from their duty to protect the mental health of their employees.

In fact, a lawyer’s duty to apply occupational health and safety laws and human rights laws goes beyond our duties to court. Legal practitioners must abide by the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Vic) (ASCR). Solicitors must not engage in conduct that constitutes discrimination, sexual harassment, or workplace bullying. Further, a solicitor is required to be honest and courteous in all dealings. Each of these behaviours stems from and is mirrored in the common law and statute. Some, like touching without consent, are criminal acts.

Let’s stop pulling our punches: the proposition that it’s outside our practice areas or too difficult to know about occupational health and safety and human rights laws is an abnegation of our duty as officers of the court and a mere fallacy as a profession.

The cycle of abuse

Given what we (should) know, how do situations like Kozarov still happen?

The legal profession contributes to a cycle of abuse and violence that oscillates from incident to firm response/perpetrator silence, victim blaming to investigation, public outcry to profession-wide training, followed by a disquieting lull. This arises from the fallacy that training alone in a psychologically and sociologically patriarchal hierarchy will prevent future abhorrent conduct.

Long hours and a stressful workload only further ingrain this cycle. The result? The likelihood of an employee incurring serious injury pursuing the employer’s desire for client satisfaction.

An inexorable tension

The tension between the laws we are duty bound to uphold and the array of repugnant behaviour in the profession — from bullying via stealing a junior solicitor’s billable hours to meet partner targets to sexual harassment in a public place and in high office — demonstrate the integrity gap. Of all places, this gap should not exist in the legal profession.

Why then, has the integrity gap widened to the point where employees in the legal sector know that grand mission statements about equality are most likely a trap?

When viewed through the requirement to obey the law, the ASCR reveal the high duties a lawyer holds to society, the courts, and the profession itself. Under the rules, the duties extend to a partner, employee or agent of the solicitor, or the solicitor’s law practice. Indeed, the duties extend to an immediate family member and their conduct.

Slipping a hand between a junior’s thighs, restraining them from leaving chambers, making lewd gestures in public — to name a few — are not the exemplars.

The integrity gap has no place around the legal profession. It reveals the underbelly of corporate policies, personal negotiations, and contractual clauses that are inclined to be trampled when the client or mood takes.

Were Ms Kozarov’s injuries “necessary” as a catalyst for lawyers to become alive to the integrity gap? Will future inductees experience the equality trap?

Closing the integrity gap

We should not and must not tolerate an industry that is riddled with perpetrators of bullying, sexual harassment, discrimination, and other acts of violence — the integrity required of members of our profession demands it. And it is not merely laws pertaining to the safety of employees that demand our attention and fearless implementation.  

There is no carve-out from our duties within the rules, which excludes discrimination on any ground. Nonetheless, women routinely face discrimination on one or more of these grounds. Discrimination is unlawful, whether direct or indirect.

The Dear Sir(s) Project takes the position that treating others equally and with respect should be the profession’s starting point and that failing to do so is a manifest breach of the conduct rules. Without such respect, an unsafe environment exists — be that touching without consent, racial/cultural epithets, leering or harassing, or the endangerment of employees’ mental health. 

Let us work together to achieve a profession where the Women in Law Forum is a celebration, not a necessity.

Carol Grimshaw is the principal of Grimshaw Legal, and Alessio Di Paolo is a JD student at Monash University. Both represent the Dear Sir(s) Project, for which Ms Grimshaw is the founder and chair.