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)
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
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
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
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
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
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.
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
1Inspector Estreich v Zaccardeli and
Others  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.
Kemp Strang has received acknowledgements for the quality of
our work in the most recent editions of Chambers & Partners,
Best Lawyers and IFLR1000.
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