|Focus:||Conviction of employer and officer for breaches of WHS obligations|
|Services:||Employee & industrial relations|
|Industry Focus:||Agribusiness, Energy, resources & infrastructure, Financial services, Insurance, Life sciences & healthcare, Property|
Two recent convictions of an employer and an officer 1 for breaches of work health and safety obligations highlight the importance of conducting thorough risk assessments in the workplace. An effective risk assessment process must identify workplace hazards, put measures in place to eliminate or reduce the risks arising from those hazards and provide adequate instruction and training to workers exposed to the hazards.
Both convictions arose from an incident that occurred on 1 January 2011 at the Blue Elephant Restaurant, a restaurant and bar business conducted by Siva & Jeya Pty Ltd (Employer) and managed on a day-to-day basis by one of the directors of the Employer, Mr Siva Mathiaparanam (Director). During a buffet lunch service, a casual waitress employed by the Employer, Ms Anisha Shrestha (Employee), was working alone in the restaurant when she noticed that one of the burner pots heating dishes in the baine-marie appeared to have been extinguished.
It was the Employer's practice to fill the burner pots with methylated spirits from 5-litre containers stored in the restaurant's kitchen and/or a chemical storage room to which all employees had access. The Employee collected one of the 5-litre containers and proceeded to pour methylated spirits into the burner pot she believed to be extinguished. Unfortunately, the flame within the pot had not extinguished and the vapour ignited, resulting in the Employee's clothing catching fire and the Employee sustaining serious burns.
Findings at trial
After concluding that the Director was an unreliable witness who may have given deliberately misleading evidence to the court in respect of certain key issues, Kearns DCJ made the following relevant findings against the Employer and Director:
- the refilling of extinguished burner pots for the baine-marie formed part of the Employee's ordinary duties with the Employer
- the Director was well aware of the risks arising from the process of filling the burner pots with methylated spirits and was specifically aware of fumes igniting during this process
- despite having knowledge of the hazard, the Director failed to conduct a risk assessment to identify means for eliminating or minimising the risks arising from the hazard
- the substitution of sealed gel fuel cans for the methylated spirits was a cost-effective means of eliminating the hazard (which was subsequently implemented by the Employer immediately following the incident)
- no material safety data sheet for the methylated spirits was made available to the Employee prior to the incident
- no training was provided to the Employee on how to safely identify and refill an extinguished burner pot
- given that English was the Employee's second language, the appropriate form of training for her was verbal instruction and/or a demonstration of how to safely perform the task, rather than being issued with a written safe work method statement.
As a result of these findings, the Employer was convicted of breaching the Occupational Health and Safety Act 2000 (NSW) (Previous Act) for failing to:
- undertake a risk assessment to identify the hazards arising out of the use of methylated spirits to fuel the burner pots in the baine-marie
- provide the Employee with a safe system of work by substituting the methylated spirits for sealed gel fuel cans
- provide the Employee with adequate information and instruction on how to safely identify and refill an extinguished burner pot.
The Director was also convicted of a breach of the Previous Act for failing to exercise due diligence to ensure the Employer complied with its work health and safety obligations.
Lessons for employers
Whilst these prosecutions occurred under the Previous Act, the same duties apply to employers and officers under the harmonised work health and safety legislation now in place in all States and Territories other than Victoria and Western Australia, where similar duties also apply.
Accordingly, the following valuable lessons can be taken from the conviction of the Employer and Director in this case:
- risk assessments must be conducted in all workplaces (including home offices) to identify potential hazards
- where reasonably practicable, employers must identify and implement measures that eliminate a hazard from the workplace (eg the substitution of an item of plant or equipment with an alternative item free from the hazard)
- where it is not reasonably practicable to eliminate a hazard, employers must implement measures to reduce the risks arising from the hazard
- hazard control measures should be recorded in appropriate documents (eg safe work method statements) that are drafted in plain English and readily accessible to persons who may be exposed to the hazard
- employers must ensure they request safety data sheets for all hazardous chemicals used by the business from the suppliers of the chemical and that these sheets are provided to any person who may request access to them, including visitors to a workplace
- adequate information and instruction must be regularly provided to workers regarding work health and safety hazards and other issues arising in the workplace
- workplace training must be designed and delivered in a manner that is comprehensible to workers and others for whom English may be a second language
- officers of the employer must ensure there are systems in place within the business to monitor the employer's compliance with applicable work health and safety legislation.
1Inspector McCarthy (nee Shaw) v Siva & Jeya Pty Ltd (2015) NSWDC 15 and Inspector McCarthy (nee Shaw) v Siva Kumaran Mathiaparanam (2015) NSWDC 16.
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