April 2005

OH&S ... some current issues including: liability for careless employees, new fines & safety considerations as grounds for termination of employment

With World Safety Day on 28 April 2005, we thought it would be worthwhile to provide a summary of some recent occupational health and safety decisions as well as outline some issues confronting workplace safety this year.

Most employers are aware of their obligations to ensure the safety of all persons at their workplace. Recent decisions of the industrial commissions continue to highlight the importance of that duty. With union and community pressure mounting for industrial manslaughter legislation in NSW, it is evident that "eternal vigilance is the price of safety".

Liability to careless employees

Liability to provide a safe workplace has been described as absolute and strict. The duty to provide a safe workplace extends to careless employees.

The decision in Inspector Templeton v Pavese Citrus Pty Ltd [2004] NSWIRComm 322 highlights the duty upon employers.

In that case, an employee was found dead under a tractor he was driving at the end of a row of fruit trees at an orchard. No one witnessed the incident, however, the deceased employee had parked his vehicle at the end of the row blocking the ability of the tractor to move safely to the next row.

The Industrial Relations Commission held that the company failed to provide a safe workplace by not directing and ensuring employees parked their vehicles away from the orchards so as not to block the movement of tractors and with the potential risk to safety.

Regardless of whether the employee was careless in parking his vehicle or seeking to move the tractor around his vehicle, the company failed to prevent the accident. By not keeping the orchard (and work area) free from obstruction, the company had not eliminated or controlled a risk to safety.

The duty to provide a safe workplace is pro-active in nature and extends to hasty, careless, inadvertent, inattentive and unreasonable employees.

Fines

A breach of the Occupational Health & Safety Act 2000 can result in a fine of up to $825,000 for a company (with a previous offence) and $82,500 for an individual (with a previous offence). In the case of Pavese Citrus the company was fined $72,000.

In our November 2004 Bulletin we reviewed the decision of Inspector Campbell v James Gordon Hitchcock [2004] NSWIRComm 87. In that case a director of a company was found to have breached the Occupational Health & Safety Act 2000 as a consequence of allowing one of his employees to drive while fatigued.

The Commission has now handed down its decision on penalty, saying a severe penalty was warranted. The director was personally fined $42,000 for two breaches of the Act.

A recent decision in Geoff Derrick v ANZ Group Limited [2005] NSWIRComm 59 resulted in ANZ being fined $175,500 for failing to provide a safe workplace. That case concerned multiple robberies and ANZ had been previously found in breach of the Act. While the Commission accepted that the bank could not ensure there were no robberies, it did not consider the bank had taken all reasonably practicable steps to ensure the safety of its workers in a timely and efficient manner. The Commission was critical of the bank taking its time to implement security features recommended as a result of a previous robbery.

OH&S considerations a basis for dismissal

Terminating an employee's employment needs to be fair or an employer risks an unfair dismissal or unfair contracts claim. But recent decisions highlight that an employer can, for a valid reason, dismiss an employee for failing to comply with occupational health and safety policies and procedures.

In Brown v BlueScope Steel (AIS) Pty Limited [2005] NSWIRComm 1021 the Commission upheld a decision to dismiss an employee, who had been the subject of a number of previous safety breaches for which warnings were issued by the employer. The employee had a casual approach to workplace safety.

The Commission stated that employees have a responsibility to obey any reasonable directions they receive from their employer over occupational health and safety issues. An employee who fails, wilfully or negligently, to follow safe work practices leaves themselves open to dismissal by their employer and in such a case the Commission would usually be reluctant to intervene in support of that employee.

The AIRC decision in Bechaz v Mariah Hovercraft Pty Ltd (PR956752, 23 March 2005) provides a valuable contrast for employers. In this case an employer contrived reasons for dismissing an employee. The dismissal arose after the employee raised legitimate OH&S concerns. The dismissal was found to be unfair. This cases emphasises the need to listen to your employees about safety issues.

Future issues in safety

The following issues will be a talking point this year:

  • The proposed NSW Occupational Health and Safety Amendment (Workplace Fatalities) Bill 2004, which, if passed by parliament, provides that if a person is found guilty of an offence under the Act that causes death, increased penalties and imprisonment may be imposed by the Commission;

  • The Court of Appeal challenge by Xstrata alleging the Occupational Health & Safety Act 2000 is unconstitutional, asserting the Commission has no power to find a company or individual guilty of a criminal offence and complaining about the burden of proof in OH&S prosecutions inappropriately shifting to the employer to show it has taken all steps to avoid a contravention.

Conclusion

Safety is paramount but the year ahead will challenge OH&S laws. The Act's validity will be tested and parliament will be asked to show how seriously it views workplace fatalities. In this environment the Commission consistently continues to send clear warnings to employers and employees: be proactive in safety.