Australia: WHS update – turning a blind eye to risks or being too blunt / full on can be costly in more ways than one

Employer understanding of employee duties key to mitigate risks

In a decision handed down last month in the District Court of NSW (Inspector McCarthy (nee Shaw) v Siva & Jeya Pty Ltd [2015] NSWDC 15), an employer was found guilty of breaching the former Occupational Health and Safety Act 2000 (NSW) (OHS Act) when a restaurant employee suffered serious burns resulting from a methylated spirits vapour explosion.

The employee in question was working in the restaurant one evening when she believed it was necessary to refill methylated spirits into a burner pot for a bain-marie in order to keep food at the right temperature for health reasons. When pouring the methylated spirits from a 5 litre container into the burner pot it ignited, resulting in serious burns requiring extensive skin grafting.

The employer was charged with a breach of section 8(1) of the OHS Act by failing in part to provide the employee with information and training (including with respect to a material safety data sheet) and carrying out a risk assessment of the task.

With respect to the information and training Judge Kearns held that:

  • The employer's claim that refilling the burner pots was not part of the employee's duties was not made out. The employee, as a waitress, would typically be concerned with food temperature and had previously seen other employees fill the burner pots.
  • No material safety data sheet had ever been provided to the employee, and given her limited understanding of English, simply handing a document would not be sufficient. Verbal follow up to explain the material safety data sheet and confirm the employee understood would be required.

With respect to the risk assessment Judge Kearns held that none had been undertaken and that if it had been alternate measures would have been used to refill the burner pots or an explicit direction provided to the employee that she was not required to fill them and should seek help.

It is clear from this case that employer's and other PCBUs should:

  • take care to understand the duties required of their workers and even to an extent associated duties which may be undertaken;
  • ensure that workers are trained and provided with required information in a form understandable for each worker, including foreign language translations;
  • make it clear to workers what their duties entail and where they may be specific prohibitions; and
  • conduct risk and hazards assessment over the tasks their workers engage in as part of their normal work.

Common sense does not override foreseeability

In another decision handed down in February 2015 (Comcare v Linfox Australia Pty Ltd [2015] FCA 61) Judge Flick fined Linfox $90,000 (an amount agreed with Comcare) after Linfox admitted to breaching the former Commonwealth Health and Safety Act.

In 2011 an employee of Linfox was struck by a forklift whilst he was inside a shipping container, crushing his head between the load being carried by the forklift and the wall of the container. The resulting injuries were extensive and including multiple fractures, teeth damage, severe facial lacerations and nerve disruption.

Charges laid against the employer included failing to conduct an adequate hazard identification and risk assessment and failing to inform and instruct employees as to the relevant dangers. Importantly it was noted that the risk was foreseeable and was known by the employer for at least six weeks, including by one of the supervisors.

Businesses should be mindful to conduct appropriate risk and hazards assessments and not turn a blind eye to obvious or reasonably foreseeable risks. Whilst conducting such assessments may of themselves at times be difficult, this is no excuse to fail to do so especially where a simple solution could be implemented to reduce or otherwise eliminate the risk of serious injury/illness.

When conducting risks and hazards assessments applicable codes of practice or industry standards should be kept in mind and employees trained/informed of the outcome. If in doubt it is best to seek legal advice and assistance early for this task rather than wait as Courts are not forgiving where easily identifiable risks are left unaddressed.

A light touch is sometimes preferable to a sledgehammer

Dealing with sick employees is never easy and often a bane of every employer's existence. However, it is important that the method for dealing with any absences is proportionate to the individual's circumstances such that making a move "all guns blazing" can be more costly than originally anticipated.

In a decision of the Tasmanian Workers Rehabilitation and Compensation Tribunal in early February 2015 (Learning Partners Pty Ltd v H (ref No 1124/2014) [2015] TASWRCT 3 (13 January 2015)) an employee was awarded compensation following the conduct of her employer contributing to her anxiety/panic symptoms with depressed mood.

On 3 November 2014 the employee sent a text to her manager saying she was still in Melbourne (with work normally in Launceston) and wouldn't be in the following day. However, at approximately 10.30am the following day a director of the employer sent an email to the employee which indicated she would be required to file a leave form tomorrow as one had not been received. The employee agreed to this.

However, on 5 November 2014 when the employee had returned to work another director emailed the employer in part stating a meeting was required that day "to address a serious matter related to your employment and as such you are invited to bring a support person with you". The employee responded saying she could not attend due to the last minute notice and her then increased stress levels and requested further information on what was meant by "serious matter".

The director responded indicating that the meeting would relate to her non attendance on 4 November 2014 and the failure to follow the company's leave policy, with the possible outcome loss of employment. The employee was further directed to return all her company equipment and files and not contact candidates in her absence.

Commissioner Chandler rejected the employer's argument before the Commission that such conduct was "reasonable administrative action taken in a reasonable manner", noting that the employee had no history of absenteeism nor was their any hardship or inconvenience to the business for being absent one day. In particular it was stated that the response "was heavy-handed and totally disproportionate to the seriousness of the worker's transgression".

It can be seen from this case that going hard on absent employees can backfire dramatically and that all circumstances surrounding a worker's absence should be taken into consideration.

Businesses should consider obtaining legal advice prior to setting up disciplinary meetings for absent employees not only to avoid triggering a compensation issue (and associated work health and safety risks) but also to address potential discriminatory conduct.

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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