Australia: When Is An Employee´s Crime The Employer´s Fault?

Two employees have an argument at work. One shoots the other as the latter is about to drive home after work. Who's to blame? The employer ..........

A recent decision by the NSW Court of Appeal found that an employer had failed in its duty of care when one employee shot another employee on the way home from work. As a result, the employer had to pay the injured employee over $861,000 plus costs.¹

Background

The injured employee (P) and the assailant (L) were both employed as stonemasons from 1999. From the time he was employed, L had behaved in an aggressive manner toward two other employees but had not engaged in violence.

However, during an argument with P in April 2000, L punched P in the head and was about to hit P with a heavy metal tool when colleagues intervened to restrain L. The manager who arrived shortly after the incident told P and L to 'forget' about the incident and discouraged P from reporting the matter to the police. No disciplinary action was taken against L.

In the period 12 to 14 December 2001, L repeatedly yelled at P in aggressive manner. One of the directors of the employer made the men shake hands in an attempt to resolve the situation, despite L demonstrating that he was still angry.

On 14 December 2001, P left work at the usual time and went to his car which was parked across the road from the workplace. P was confronted by L who then shot at P three times with a handgun, injuring P underneath his armpit.

P commenced proceedings in the District Court alleging that his employer's negligence resulted in the incident.

The District Court found in P's favour and awarded him in excess of $861,000 in damages. The employer appealed the decision to the NSW Court of Appeal.

The Court of Appeal's decision

Before the District Court and the Court of Appeal, the employer argued that there was no duty of care to protect an employee from an unforeseeable extreme act of violence committed after work on a public street.

However, both courts found that a duty of care existed and that the employer had breached that duty.

In particular, the Court of Appeal found that at the time of the first incident between L and P in April 2000, the employer should have at least warned L that his behaviour was unacceptable and that if he did not control his behaviour, he would be dismissed. Alternatively, L should have been dismissed at that time. In addition, the employer should not have discouraged P from reporting that incident to the police.

While the precise circumstances of the December 2001 shooting incident were not reasonably foreseeable, it was foreseeable that P might be assaulted by L (again) and that L might use a weapon.

The Court of Appeal therefore concluded that the employer was negligent: the injury to P was caused by the employer's breaches of its duty of care and the outcome was not too remote.

Comment

While it may seem harsh to hold an employer responsible for the criminal acts of an employee outside the workplace, the case is a timely reminder of the broad scope of an employer's duty of care to its employees.

The case demonstrates the importance of taking disciplinary action immediately in relation to serious workplace altercations. Hoping that the employees will 'work it out' leaves the employer open to claims of negligence if there is a subsequent incident resulting in harm to an employee.

The fact that the incident in this case took place after working hours and not in the workplace made no difference. The Court of Appeal found that as the circumstances were not remote in terms of time and location, the consequences of the breach of the duty of care were reasonably foreseeable.

1 Gittani Stone Pty Limited v Pavkovic
[2007] NSWCA 355 (13 December 2007).

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