Former employee Kaliya Arumugam told the ABC that what she thought would be a fun, lighthearted role quickly morphed into being the subject of assault, racial slurs and sexual harassment.

At least six ex-workers at Karen’s Diner have now taken formal action after management failed to take these instances seriously.

“These incidents have ranged from my personal image, like insults about my physical appearance, body shaming, racial slurs and sexual harassment and physical assault,” Ms Arumugam told the ABC.

“I had a group of young men physically threaten me, and once they left, they waited outside the front of the venue for me for about an hour or so. There were incidents where we had to call the police and get people removed … and they just were never really taken seriously by management.”

This news followed a former personal support worker speaking out after being assaulted at work and sacked four weeks later.

Nicole Grieve, who has sought legal action, was violently assaulted by a man with a disability while driving him to an appointment in November 2019 and has since suffered from PTSD and is being treated for depression.

“I went into that person’s home not even knowing their age, what their disability was or what their needs were. There were no proper procedures shown to me or training, and it could have cost me my life,” she said.

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“He damaged my car. When I rang the police after pulling over and escaping from the car, they said I did everything I possibly could by not fighting back. My whole life has been affected: it has shaken my world.”

In light of these instances — and despite new Respect@Work legislation — employer regulations around protection for employees at work don’t go far enough in practice, three employment and compensation lawyers have argued.

Reflecting on the allegations against Karen’s Diner, Adero Law managing director Rory Markham said that the franchise owed staff “a non-delegable duty of care to provide a safe work environment that is free from harassment or a reasonable likelihood of injury”.

“Employees also must carry a no-fault workers’ compensation policy that covers workers for injuries sustained during employment. The ability for workers to proactively enforce these rights, or claim benefits, is well established both within the Fair Work Commission and by reference to work health and safety guidelines that are enforced by state or territory-based regulators,” he said.

“Whilst the Karen’s Diner can be a fun and playful concept — the risk of serious mental injury or an unsafe interpersonal environment is obvious. The very concept of a Karen is to incite public ridicule — in a vein not dissimilar to a comedian that practices political satire. It is more suitable for volunteers in controlled environments or actors.”

Similarly, Swaab partner Michael Byrnes said that the concept of Karen’s Diner needs to be balanced against employee safety and welfare — and a failure to achieve this balance could lead to workers’ compensation claims.

“A concept such as Karen’s Diner, the basis of which is to pit staff against customers and vice versa, is fraught with risk. In recent years, the safety risks to staff resulting from abuse from the general public, both in person and online, have been recognised. The notion of ‘the customer is always right’ no longer applies. Employers with staff who deal with the general public need to actively manage the potential safety risks, both physical and psychological.

“One aspect of the stop bullying jurisdiction of the Fair Work Commission that is often overlooked is that a customer of a business can be a ‘bully’ and have orders made against them by the commission to prevent ongoing bullying conduct. In such circumstances, orders might also be made against the employer,” he explained.

“Finally, once the Respect@Work reforms are implemented, there will be a prohibition against workplace environments that are hostile on the ground of sex, which includes sexual harassment. This prohibition could capture certain conduct of customers or patrons in the workplace that is offensive, intimidating or humiliating. Employers will have an obligation to actively address such conduct to avoid potentially breaching the Sex Discrimination Act.”

The execution of establishments like these cannot come at the expense of the employees, Mr Byrnes added.

“While employees agreeing to work in such environments are signing up to be subject to conduct that might not be permissible elsewhere, it should not give patrons a blank cheque to do as they please. The dual interests of customer satisfaction and employee safety need to be reconciled. The principles in WHS law (such as the ‘reasonably practicable’ test) seek to strike that balance. Every workplace, no matter how unusual or novel, must have a safe system of work,” he quipped.

“This issue is not confined to unorthodox hospitality venues — it can also apply to professional services firms or other environments in which high-level client service is critical. Clients have a right to be demanding, but they should not be abusive. If they cross that line, they need to be managed, even if that might mean some lost revenue.”  

Within the Victorian healthcare sector, however, Ms Grieve said that disability workers and aged-care workers, such as herself, consistently fear for their own safety in the workplace due to aggressive behaviour.

Ms Grieve, who is currently investigating a common law claim with Slater and Gordon, was hired by her ex-employer as a cleaner, with no formal qualifications in support work.

“I was a cleaner being sent out to disability care jobs, and my employer knew that was the case. I would ask questions when I could, but they had total disregard for the hours I worked or whether the tasks were part of my skill set.

“They knew I didn’t have the qualifications and that it was a disaster waiting to happen. Luckily I am a bit older and have the life experience to deal with people well, but I didn’t have the relevant training to deal with mental health issues or anything like that,” she said.

“It’s not fair that this happens to workers. People are too scared to speak up. I might not have come home to my kids or family that night.”

Slater and Gordon workers’ compensation lawyer Anne Daly said Ms Grieve’s employer failed to provide a safe system of work and did not brief her or warn her about the man’s aggressive nature.

“Employers have a legal obligation to protect the health and safety of their staff, and there are a range of things they can do to help prevent workplace injuries. These include providing adequate training for staff, rostering enough staff to work each shift, and ensuring staff are informed about any critical incidents so they are aware of what triggers certain residents and may lead to them acting out,” she explained.

“If carers are given the knowledge they need and are not left alone, situations such as what Nicole experienced may not have resulted in injuries at all.”

Moreover, employees injured at work — and particularly in a disability setting — are more likely to experience issues like PTSD down the track as a result.

“Cases like this are sadly all too common, and we are representing an increasing number of clients who’ve been injured at work in residential care settings. The implications of these workplace injuries can be huge, and some people are unable to return to their pre-injury duties at all,” Ms Daly added.

“In addition to suffering physical injuries such as sprains and strains, or injuries stemming from violent outbursts from residents with complex needs, many of these workers also experience psychological injuries that can require years of treatment.”

Workplace manslaughter laws also came into effect in 2020, which apply to negligent conduct by an employer or a corporation, according to Ms Daly.  

“Serious penalties apply, including a maximum 25 years’ imprisonment for individuals and a maximum fine of $16.5 million for companies. These new laws aim to deter employers and companies from breaching their occupational health and safety obligations,” she said.

“Work injuries can be life changing, so every employer has a legal obligation to do everything they can to prevent injuries from happening in the first place.”

And despite there being regulatory protections in place, the quality of the regulatory scheme “depends on the ability of workers to access services for support and the public resourcing that is provided to regulators for enforcement”, added Mr Markham.

“In my experience, a real drag on employee safety arises where state regulators are poorly funded and deploy triage-based risk assessments to safety complaints that prioritise physical injury over mental harm,” he said.

“It’s clear that in the long run, the more widespread and debilitating risk for a workforce is mental harm. It is high time that regulators emphasise mental care as an important WHS measure.”