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A small rush of decisions in cases involving employee pranks
have come out in the last month or so. Just a coincidence rather
than a trend, but they do highlight employee pranks as a
workers' comp/WHS risk, and the potential liability of
employers for penalties under the WHS legislation.
All of the cases involved particularly silly acts, so for that
reason they are probably the sort of things that you feel warning
against is unnecessary or "goes without saying".
However, you can't be too careful. These cases also
illustrate the sort of things covered by skylarking or practical
jokes and employees should be told that it is totally unacceptable
conduct via workplace policies and safety training. This is
especially so if your industry or workplace has a culture or
tradition of "inducting" or "initiating"
apprentices, where some of the worst cases occur.
"Egging"
In a recent NSW Industrial Relations Commission decision, four
workers were found guilty of WHS offences for "egging"
one of their colleagues because he was getting married the next
day.
The victim was seized, his hands and feet were strapped to a
panel of steel mesh, his clothes, except for his underwear, were
cut off with a knife, and he was pelted with a dozen raw eggs. Then
the genius in charge of this escapade (a supervisor aged 49!)
poured a half-circle of petrol around the victim and lit it. The
victim struggled, and as a result he and the steel mesh fell into
the flames. He was rescued and offered a spare set of clothes, but
not first aid, by his colleagues. He suffered burns requiring skin
grafts and, not surprisingly, psychological injuries. His wedding
and honeymoon were ruined and he lost his job because of incapacity
to work.
The supervisor was sacked, prosecuted in the ordinary criminal
court ($2,000 penalty), had to pay $16,000 to the workers
compensation insurer, and another $2,000 for the WHS offence, plus
Workcover's costs. Another participant was fined $1,800 plus
costs. Two employees who were "fringe players" escaped
conviction, but with the admonition that it is not enough to
disapprove passively – an employee seeing something
dangerous being done has a duty to intervene.
The company jokester
A known prankster approached a co-worker and clapped his hands
abruptly over the co-worker's ears, triggering hearing loss and
the onset of tinnitus. The employer was held liable for workers
compensation because the incident arose out of his employment, even
though the act of the prankster was well outside the course of
employment.
Picking on the apprentice
A labour hire employee glued some screws together to play a
prank on an apprentice and other workers. When the apprentice
discovered the trick and turned to the prankster, the prankster
aimed a nail gun at him (allegedly in the belief that it was
disconnected), and fired. It wasn't disconnected and the
apprentice was hit in the arm - of course it was pure luck that the
injury was not worse. The prankster was prosecuted and fined
$3,000. (Last year, an employee firing a nail gun at another
employee was gaoled.)
"I was bored"
After an 18-hour wait at a wharf to refuel a ship, one worker
livened things up by firmly pushing a co-worker's knees from
behind causing the co-worker to stumble and hurt his back
severely.
This time, the act was found to be so far out of the course of
employment that the employer was not liable for damages (but there
were no doubt workers comp costs).
If your staff need training in relation to acceptable and
unacceptable conduct (whether it be skylarking, bullying,
harassment or discrimination), please contact our Employment Law
Team on ph 02 9635 6422 for assistance.
Whilst you may not think you need to spell these things out,
time spent ensuring your employees know their obligations and
responsibilities could prevent an injury and save you considerable
cost down the track.
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.
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A court has determined that an employee had a workplace right under the Fair Work Act 2009 to make a complaint entitling the employee to proceed with her general protections claim.
