Appointment of WH&S Committee Chairperson

First Successful Prosecution Under Harmonised WH&S Laws

The Magistrates Court of South Australia has fined Olga’s Fine Foods $10,500 (the maximum penalty being $30,000) for a breach of the State’s Work Health and Safety Regulations 2012 for a failure to manage and control plant risk as required by a PCBU. The company was found guilty of the breach as a result of a worker having sustained an injury when her finger was dragged into a schnitzel making machine. The worker suffered a traumatic injury resulting in her finger being crushed and later being surgically removed in part. The worker was checking whether the machine needed lubricating at the time of the injury.

Magistrate Lieschke held that the company’s weak administrative controls on plant equipment and operation resulted in the employee sustaining an injury that could have been prevented if the correct measures were in place. Magistrate Lieschke said that “inadequate administrative hazards controls essentially left [the worker] to work out for herself, as the relevant team leader, how to deal with the indications the drive chain may need lubricating”. Of even greater concern was that the company had been fined in 2009 after another worker had sustained crush injuries on a machine that had missing guards and a deliberately disabled interlocking mechanism.

Magistrate Lieschke scrutinised the company for not having safeguarded workers against the risk of injury in the workplace and declined to apply the maximum 40% discount because of the employers’ failure to adequately compensate the worker for her permanent injury. He did however apply a 30% discount to the maximum penalty as the employer modified the chain guards after the incident so that they could only be opened with an allen key.

Click here to read the full decision.

Failure to Protect Worker Results in Over $700,000 in Damages

A worker has been awarded $733,723 in damages for past and future economic loss as a result of her employers’ failure to prevent her from being exposed to serious and immediate danger, resulting from her being sexually harassed by a director of the employer company. The worker was subject to repeated physical and verbal sexual harassment which continued even after she made a complaint to another director of the company. The worker was eventually forced to resign. Even after having resigned from her role, the director continued to harass the worker by arriving uninvited at her home. The police were eventually called to remove him from the premises.

The worker proceeded to lodge a claim against the company arguing that it was vicariously liable for the actions of the director. The worker also argued that the company, through their inaction, exposed the worker to repeated acts of physical and verbal harassment and did little to prevent the directors’ behaviour, resulting in her being put at risk when he arrived at her home.

The company refuted the claim arguing that the actions of the director were his own. Judge Levy rejected this claim on the basis that the director was "controlling mind, will and embodiment of the company". His Honour further held for the applicant stating that a reasonable employer would have acted to protect the worker and that the employer failed to provide a safe workplace free from the “repeated sexual harassment, bullying and intimidation” suffered by the worker.

The case serves as an important reminder of the obligation of employers to ensure that their workplaces are conducive to the health and wellbeing of their workers and to remedy behaviour contrary to this obligation as soon as it is complained of.

The NRA’s own law firm, NRA legal can assist employers with developing policies, procedures and mechanisms to manage risks to health and safety in the workplace. For those interested in refreshing their knowledge in this area, we encourage you to attend one of our in-house training sessions. The 2014/2015 training calendar can be accessed here

Click here for the full decision of the case.

The Christmas Party Conundrum

There are a number of steps that employers can take to ensure that their workers remain safe during silly season festivities. We urge employers to plan to ahead and consider and any all risks that workers may be exposed to when they attend social functions during this time. Employers who do not have a formal social functions policy, should consider implementing one; the policy would capture worker obligations, consequences for breaching these obligations and would identify individual duty holders.

In preventing a Christmas party catastrophe, employers should consider some of the following:

• Implementing a social functions policy, which also covers secret Santa activities. Workers should be made aware that inappropriate gifts will not be acceptable.
• Reminding staff prior to a social function that workers are expected to behave in accordance with the policy at all times and that their behaviour at ‘after-parties’ may, in some circumstances still amount to breach of the employers policy. The article in September’s WH&S update is a great reminder of this and can be accessed here
• Implement set start and finish times for functions.
• Undertake a risk assessment of any venue where a function may be held. Consider the risk of stairs, the location of fire exits, the accessibility of amenities such a restrooms and the location of the venue and the ability of workers to return home safely.
• Ensure that where alcohol is served, workers are provided with food and non-alcoholic beverages.
• Appoint a selected number of managers and supervisors to remain sober during the function and advise staff that they can be approached if an issue were to arise.
• Ensure that workers who behave in a manner that brings the employer into disrepute or where the worker’s behaviour poses a risk to health and safety, the worker is removed from the function and provided with transport home.

The above list is not exhaustive and employers are encouraged to assess the risks that would be applicable to their particular business and their workforce. For those who would like additional advice or a social functions policy, please contact NRA Legal on 1800 738 245.