Employees don't have to be the instigator or actively involved in a workplace 'prank' in order to face personal penalties for breach of work health and safety (WHS) obligations.
In the recent case of Inspector Estreich v Zaccardeli and Others1 the NSW Industrial Relations Commission found a number of employees guilty of offences under the Occupational Health and Safety Act 2000 (NSW) following a workplace 'prank' which resulted in an employee suffering injuries. The prosecuted employees included individuals who did not take part in the prank but who also did nothing to intervene.
The victim of the prank, Mr Catanzaro, was due to be married the following day. Mr Zaccardelli was the most senior employee on site and the instigator of the incident. During the 'prank', Mr Zaccardelli hit Mr Catanzaro in the groin, tied him to a piece of steel mesh by his hands and legs, threw eggs at him, cut his clothes off, poured fuel in a semi circle in front of Mr Catanzaro and lit it. During the incident, Mr Catanzaro fell into the fire and was burned and Mr Zaccardelli did not provide any first aid or assistance.
Mr Zaccardelli was unsurprisingly found guilty under section 20 of the OHS Act, which deals with an employee's duty to:
- take reasonable care for the health and safety of people who are at the workplace and who may be affected by the employee's acts or omissions, and
- co-operate with their employer or other persons so far as reasonably necessary to enable compliance with the OHS Act and regulations.
Section 20 of the OHS Act is similar to section 28 of the new Work Health Safety Act 2011 (NSW), however the new act is not limited to the health and safety of others at the workplace and co-operation is not only required where "reasonably necessary".
Mr Zaccardelli received a criminal conviction and a $2,000 fine. Other participants in the prank were also found guilty of a breach of section 20 of the OHS Act and received fines and criminal convictions or entered good behaviour bonds.
A positive duty to act
Mr De Gail, a 23 year old labourer, told Mr Zaccardelli he did not want anything to do with the 'prank' and walked away from the scene of the prank.
The Commission found that while Mr De Gail did not participate, "he was a spectator and failed to intervene in any way, by protest or otherwise, to try to prevent the so-called practical joke prior to the fire being lit... An employee is not entitled to stand by and do nothing if it is reasonably foreseeable that what is occurring may place the health and safety of another employee at risk".
Another employee, Mr Prelevic, was also found guilty of breaching section 20 by purchasing the eggs (on Mr Zaccardelli's instruction) and not doing anything to help Mr Catanzaro until after the fire was lit. "While the opportunity may not have been great, Mr Prelevic omitted to take what opportunity there was to intervene to help Mr Catanzaro before the petrol was lit".
Both Mr De Gail and Mr Prelevic came to Mr Catanzaro's assistance once the fire was lit, but this was not enough to discharge their health and safety obligations to their co-worker.
Although Mr De Gail and Mr Prelevic did not have convictions recorded, each were placed on good behaviour bonds for 12 months and ordered to pay the prosecution's costs.
Conclusions
This case highlights the need for employees to be made aware of their work health and safety obligations and the fact they can face personal liability even where they are not the cause of the risk to another's health and safety.
As well as helping your employees to avoid prosecutions, for employers to avoid the risk of a prosecution by WorkCover or a claim of negligence from an injured employee, employers need to effectively train their staff and ensure employees at all levels, from managers through to apprentices and everything in between, are aware of their work health and safety obligations. Make sure you have policies in place, like the employer did in Zaccardelli's case, and ensure employees take part in effective training, not just once but on an ongoing basis.
Furthermore, employers need to be aware of their own work health and safety obligations, which include investigating allegations of misconduct that may pose a risk to work health and safety, even if a complainant employee advises they do not want the matter taken further. In conducting investigations employers can, and where necessary should, compel employees to take part in the investigation, as an employer's reasonable direction must be followed to allow compliance with work health and safety obligations.
Footnote
1Inspector Estreich v Zaccardeli and Others [2012] NSWIRComm 47 (31 May 2012)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
