Not having a Just Culture could be putting your business at legal risk

A Just Culture has always been a great thing to have, but is fast becoming a must have. New regulations have been coming into force in Australia and other jurisdictions requiring employers to protect their workers from the risks of the psychosocial hazards. Essentially these new laws require employers to safeguard their employees’ mental health, just as they would their physical health.

There are a wide range of psychosocial hazards which if severe, prolonged, or frequent can lead to high levels of stress and negative mental health impacts. I’ll touch on a few significant ones in this post and then talk about how a Just Culture can eliminate or mitigate the risks from these hazards.

First, high job demands. This is where the work imposes high levels of physical, emotional or mental workload on a severe, prolonged or frequent basis. For example, a lack of written procedures which requires staff to commit large amounts of information to memory with high consequences if they make a mistake could let to excessively high mental workload.

Second, low job control. This is where the workers have little to no input on how they do their work. This might be because their expertise is not recognised, where there is excessive micro-management, or where procedures are so strict that they cannot adapt to unusual situations.

Third, poor change management. Change can be a hazard if it poorly managed and is severe, lengthy or frequent. The lack of stability or direction is causes can lead to high levels of stress, quite apart from poor work outcomes.

Fourth, poor organisational justice. Employers must have just and fair processes for decision making, such as when assigning rosters, investigating complaints, and assessing performance. This includes making sure policy is not applied in a way that is unfair, biased or inconsistent. It also includes making sure employees are not subject to unfair blame, such as being penalised for things that are not their fault or were outside their control.

Organisational justice also covers informational fairness, ensuring appropriate privacy for employees’ information and keeping them fairly and reasonably informed so they can do their jobs effectively.

Finally, it covers interpersonal fairness, ensuring that issues such as underperformance, misconduct, or complaints of harassment or bullying are addressed appropriately and fairly.

Fifth, lack of role clarity, where employees’ roles are unclear or where they are given conflicting work priorities.

Sixth, the presence of harmful behaviours. Employers are required to ensure that the workplace is, as far as reasonably practicable, free of violence, bullying, harassment or interpersonal conflict. For example, failure to investigate credible complaints of sexual harassment or permitting a culture to develop where such behaviour is tolerated.

Seventh, inadequate reward or recognition. This is where rewards are given unfair or in a biased manner, where staff are given insufficient or unfair feedback, or are otherwise not recognised for their skills and performance.

Failure to appropriately eliminate or mitigate the risks from these hazards to the lowest level that is reasonably practicable could leave an organisation and its management exposed to fines, higher insurance premiums, reputational damage, or even imprisonment in extreme cases.

How Just Culture can help

So how does a Just Culture help an organisation meet its legal obligations to protect against psychosocial hazards? Most obviously a well functioning Just Culture ensures organisational justice through a principle of mutual accountability. Staff are accountable for the quality of their decisions and actions, while the organisation is accountable for the systems of work it creates. This ensures staff are not blamed unfairly for issues arising from systemic issues. Just Culture also helps the organisation to give fair feedback and to recognise exceptional performance.

Just Culture is not a ‘get out of jail free card’ for staff however. There is a clear line defining conduct that is unacceptable and merits a disciplinary response. This allows the organisation to still address harmful behaviours just as harassment or gross recklessness fairly and appropriately.

A big focus of a Just Culture is encouraging staff to report issues, suggestions, near misses, and mistakes. Welcoming reports, responding back, and acting helps staff feel that making reports is valued and worth their time and effort. Taking a just and fair approach to human error helps staff feel safe to report problems, mistakes and errors because they are confident they will not be penalised if they were acting in good faith.

The information obtained from staff reporting is vital data for the organisation to be able to identify psychosocial and other hazards in the workplace. Hazards that haven’t been identified cannot be addressed. They remain lurking, an undetected threat of damage, harm or loss to the organisation and its people. For example, staff reporting near misses because procedures didn’t allow them to adapt appropriately allows the organisation to make improvements to those procedures before it causes a major incident.

The Just Culture focus on identifying and addressing systemic issues within an organisation can do a lot for mitigating a range of psychosocial hazards, including workload issues, change management, role clarity and job control. It also has the benefit of prioritising improvement over blame, mitigating another psychosocial hazard.

Quite apart from psychosocial hazards, addressing systemic issues can create massive gains for an organisation through quality, productivity and process improvements. There are many good reasons for the organisation to adopt and foster a Just Culture, including reducing staff turnover, encouraging innovation, and reducing error.

The need to eliminate or mitigate risk psychosocial hazards has now made having a just and fair workplace culture a legal necessity. Organisations which don’t ensure workplace justice are risking both their staff and exposing themselves to legal liability. However, the protection Just Culture gives and the significant business gains it provides makes fostering a Just Culture is one of the best things you can do for the long term success of your organisation.

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DISCLAIMER: This blog provides general information only, and is not intended as advice (legal or otherwise) specific to your circumstances. Please contact us if you have any particular questions.