Newsletter 

Q3 - 2021  Jul - Sep.

# In house modification leads to guilty verdict.

# Truckie driven to injury - awarded $967,000

# Horseplay at work could prove to be very expensive

# No compensation for a fall while socialising at work function.

# Gig worker deemed to be an employee.

# One minute late was sixty seconds too long

# If you fail to comply with covid 19 policies, you can expect the consequences

#  First prison sentence in WA for a WHS offence.

#  Get dressed in the boss’ time 

  .................................. 

In house plant modification leads to guilty verdict on appeal

The original case

Mr Davies (the plaintiff) was employed by Whitehaven Coal Mining Ltd (the defendant) as an underground miner and equipment operator at its coal mine. On 2 June 2011, the plaintiff drove a load hall dump machine (LHD) to an underground diesel bay to refuel and rewater it. The bay was wet with groundwater and diesel spillage. The plaintiff ascended the LHD via the rear ladder to lift the engine cover. It was necessary to do this because the defendant had modified the engine covers of its LHDs to make them more durable. As the plaintiff descended the ladder, his left foot slipped. He swung around, lost grip with his right hand, then fell approximately 1.54 metres and injured his shoulder.  

The plaintiff alleged the defendant’s failure to take precautions after modifying the LHD was negligent, as the nature of the modifications, combined with the slippery conditions in diesel bays, created a risk of a fall. He asserted the defendant could have fitted steps at the rear of the LHD, upgraded the ladder and hand holds or provided a work platform for use in the diesel bays.  

The Court concluded the existing ladder and handholds at the rear of the LHD were an adequate safety measure, provided employees were appropriately trained (as the plaintiff was). The additional safety measures the plaintiff proposed were impractical on a mine site and, in any event, did not eliminate the risk of falling or slipping. Therefore, the Court gave judgment for the defendant. 

The Appeal

The New South Wales Court of Appeal recently found otherwise and the employer defendant was found to be liable as a result of in-house modifications it undertook on machinery in circumstances where adequate engineering advice had not been first obtained.

The case considered an employer’s duty to provide workers with a safe place and system of work so as to avoid foreseeable risks of injury.

The trial judge, Wright J, considered the following issues (1) whether the employer had breached its duty to provide a safe place of work to the appellant and (2) whether the appellant was contributorily negligent. Wright J found as follows:

1.  Although working on top of the LHD presented a risk of injury to the appellant, and the descending from the LHD was a risk reasonably foreseeable, there was no failure by the employer to eliminate the risks given it had implemented sufficient hand railings and points of contact; and 

2.  That the appellant failed to take reasonable care for his own safety and was contributorily negligent to the extent of 30%. 

The issues on appeal were refined to determining whether the trial judge had erred in only focussing on the issue of whether the employer had discharged its duty of care in eliminating the risk associated with the modifications made to the LHD, rather than also considering whether the modifications created an unnecessary risk.

The court found that the employer should not have carried out the modifications to the LHD given it was inherently unsafe to have workers climb on top of the machine in conditions that may be slippery and greasy. It was also determined that when disembarking from the LHD, it was difficult for workers to maintain three points of contact as they had been directed to do. The court made note that the employer had decided to make the modification rather than having the LHD returned to the manufacturer for repairs, for which no explanation as to why this was done was provided.

With respect to the trial judge’s findings that the employer had implemented adequate controls to mitigate against the risk of injury, the court disagreed, determining that:

• Although workers were now required to climb on top of the LHD, no additional handholds or steps had been added during the modification process in order to assist workers when disembarking; and 
• The manoeuvre which the appellant was tasked with was akin to lowering himself down a cliff, rather than a simple manoeuvre of stepping down a ladder using handrails. 

Having regard to the above points, the court also overturned the primary judge’s finding of contributory negligence. It was determined that the appellant had not acted carelessly given that he was only performing his role within a system of work which had failed to provide adequate safeguards.

Davies v Whitehaven Coal Mining Limited [2020] NSWCA 219

Truckie driven to injury

Truckie driven to injury by driving a Western Star prime mover with a defective seat over a long period of time. 

There was no dispute that the seat was defective. The remaining liability issue was factual causation – that is the plaintiff had to demonstrate that the injury would not have occurred but for his employer's breach of the duty of care. 

In 2020, the plaintiff received a significant award of about $764,000 in Peebles v WorkCover Queensland [2020] QSC 106, a decision of Justice Jackson of the Supreme Court in Brisbane. 

Recently, the Court of Appeal in Peebles v WorkCover Queensland [2021] QCA 21 increased this award to about $967,000 after reducing some of the discounting applied by Justice Jackson for the possibility that the pre-existing degeneration in the lumbar spine would have caused similar problems in any event. 

Horseplay at work could prove to be very expensive 

In the case of Jony Ajia, in 2020,  the District Court heard that Mr Ajia was employed by a labour hire firm in 2016.  He was working on a Sydney building site, doing labouring work which he had done for several years. 

The court heard that Mr Ajia was walking across the site when his supervisor came up behind him and gave him a playful "bear hug". They fell to the ground and the supervisor landed on Mr Ajia's leg, causing immediate and extreme pain. 

Mr Ajia had to undergo three separate surgeries on his right ankle and could not continue doing the physical work he had been doing. He retrained to work as an alarm monitor in the security industry, working in a seated position, but earning less than he did before the incident. 

In July 2020, Judge Andrew Scotting found the company had breached its duty of care to Mr Ajia and awarded him $662,012 in damages, including more than $200,000 in future economic loss and loss of superannuation. (See Ajia v TJ & RF Fordham Pty Ltd trading as TRN Group [2020] NSWDC 371.) 

The supervisor's defence was that Mr Ajia was a big fellow and they had developed "a bit of fun" at work, playfully wrestling and knocking about in previous encounters. 

The supervisor's employer defended the damages claim, sending an investigator to follow and record Mr Ajia lifting weights at a gym. The company claimed he exaggerated his lasting injuries. 

Judge Scotting dismissed the investigator's report, and ruled Mr Ajia was telling the truth about his continued pain. 

 We understand that there is an appeal by horses claiming that the action of humans is giving them a bad name.

 No compensation for a fall while socialising at work function.

A Full Court has upheld a decision not to grant workers compensation to a worker who sustained hip injuries when she slipped in the foyer of a hotel she was staying in to attend a workshop organised by her employer.

The Telstra worker, Ms Dring, slipped at around 2.30 am on tiles outside a bathroom in the hotel lobby, which Telstra had booked for her to stay in during her interstate stay. She had been eating dinner and drinking and socialising with a colleague for about 8.5 hours when the slip occurred on returning to the hotel.

The claim was that because Telstra required her to be at the place where the injury occurred, Ms Dring ought to be compensated for her injury, asserting precedent established this was connected to her employment.

The Full Court acknowledged that it was a difficult and borderline case, and that a different tribunal member may have reached a different conclusion. Rangiah and Wigney JJ pointed out there was not enough evidence to establish that alcohol consumption contributed to the fall. However, Member Burke of the Administrative Appeals Tribunal, in dismissing the application had found that the injury had occurred socialising with a friend for over 8 hours, which the employer did not encourage or induce, and not merely by reference to place. The proper legal principles were applied, there was no appealable error by Member Burke, or the single judge of the Federal Court who upheld that decision.

The Full Court dismissed the appeal with costs against Ms Dring.

Source: Dring v Telstra Corporation Ltd [2021] FCAFC 50, 9 April 2021, accessed 12 April 2021.

Appealed from: Dring v Telstra Corporation Ltd [2020] FCA 699, 26 May 2020.

Gig worker deemed to be an employee.

In a significant decision for gig economy workers, the Fair Work Commission (FWC) has held that a Deliveroo rider was an employee entitled to protection from unfair dismissal.

Mr Franco, a Brazilian national who arrived in Australia in 2016, joined Deliveroo Australia Pty Ltd (Deliveroo) as a rider in about April 2017. It was Mr Franco’s primary source of income until April last year when his access to the Deliveroo Rider App was disabled by Deliveroo because of his alleged failure to deliver orders in a reasonable time.  He had worked for the company for about 3 years until he was dismissed. 

Mr Franco lodged an unfair dismissal application contending that Deliveroo had not given him a chance to respond to the allegations about slow deliveries nor was he warned prior to the dismissal.

In rejecting Deliveroo’s jurisdictional argument that Mr Franco was an “independent contractor” and not dismissed, the FWC found that relationship between Mr Franco and Deliveroo was that of employee and employer. Commissioner Cambridge stated that Deliveroo, like other digital platform companies, camouflaged its significant level of control over its riders. According to the Commissioner, this was evidenced by, amongst other things, the fact that Mr Franco was not carrying on a trade or business of his own, wore clothing with Deliveroo branding, did not have a distinct trade or profession and there was no prospect for the development of any goodwill as a “rider for hire”. 

Turning to the dismissal, the FWC held it was unreasonable to dismiss Mr Franco on the basis of delivery times because Deliveroo had never advised Mr Franco what delivery times were expected of him. Commissioner Cambridge found that the Deliveroo’s actions were “callous” without any of the ordinary protections provided to employees, stating that it was “plainly unconscionable” to dismiss Mr Franco without first hearing from him. The Commissioner also stated that being a digital platform did not give Deliveroo a license to treat individuals, regardless of whether they were employees or contractors, without “human compassion”. 

Deliveroo was ordered to reinstate Mr Franco with continuity of employment and restoration of lost pay. 

Deliveroo intends appealing this decision to the Full Bench of the FWC. 

Source: Diego Franco v Deliveroo Australia Pty Ltd [2021] FWC 2818, 18 May 2021. 

One minute late was sixty seconds too long 

An applicant, a business development manager, who lodged his unfair dismissal application 1 minute late was refused an extension of time despite his substantive application showing merit. 

The applicant, Mr Thai Luu, was employed by Employsure Pty Ltd (Employsure). The applicant’s employment was terminated on 15 January 2021 and he lodged his unfair dismissal application online with the Fair Work Commission at 12.01 am on 6 February 2021. The application was 1 minute late. Employsure raised a jurisdictional objection that the application was lodged out of time. 

Although dismissed via email on 15 January 2021, the applicant claimed that he only became aware of his dismissal on 19 January 2021 when a courier company contacted him to arrange collection of his company car. He said that he had not opened the attachment to the dismissal email because he was following instructions from his doctor to “disconnect” from work. 

Mr Luu claimed that he had not been expecting dismissal after attending a performance meeting on 14 January 2021. He had a medical certificate allowing him to be absent from work for mental health reasons from 15 January 2021 to 29 January 2021. 

The FWC found that awareness of the termination 4 days later was “not so detrimental to delay Mr Luu from filing an application within the required timeframe”. The applicant had not made any attempt to dispute the dismissal. The employer would not suffer prejudice as a result of the delay. The FWC also found that the application was “not without merit” and that there was an arguable case for the applicant. 

On balance, the FWC found that the circumstances of the case did not support an extension of time. 

Section 261 of the Workplace Injury and Management Act 1998 (NSW) outlines the time within which a claim for workers compensation must be made.

The time limit to make a claim for workers compensation in New South Wales is six (6) months from the date of injury or accident, or, in the case of death, within six (6) months after the date of death. However injured workers should not delay and aim to make a claim as soon as possible.

Thai Luu v Employsure Pty Ltd [2021] FWC 2599, 7 May 2021. 

If you fail to comply with covid 19 policies, you can expect the consequences 

Recently, the Fair Work Commission (the Commission) took the failure of an employee to comply with a procedure implemented by their employer in response to COVID-19 to be a valid reason for dismissal. In all the circumstances, the failure of the employee was deemed a serious issue. 

In the matter of Fesshatsyen v Mambourin Enterprises Ltd (2021) FWC 1244 (Fasshatsyen v Mambourin), Miss Yordanos Feeshatsyen (the Applicant) was a disability support worker for Membourin Enterprises Ltd (the Respondent). The employer had introduced a procedure whereby employees had to measure their temperature upon entering their workplace. Individuals who read over 38 degrees were required to immediately isolate, notify a designated person, leave the site, and go home or to a medical centre. 

On 10 June 2020,  Ms Feeshatsyen arrived at work and measured her temperature. When it responded with an unreasonably low measurement, she repeated the process. On the second occasion, she received a reading of 38.5 degrees. Ms Feeshatsyen then remained at work for the day. 

As part of an internal investigation conducted by the employer into the above conduct, Ms Feeshatsyen was invited to respond to the alleged conduct at a meeting. Ms Feeshatsyen argued that she knew upon receiving the measurement of 38.5 degrees that she had not been sick and that the temperature reading instrument had been faulty in the first instance and was therefore unreliable. At that meeting, Ms Feeshatsyen was notified that substantiation of the allegation against her could result in termination of her employment. 

The next day, Ms Feeshatsyen was summarily dismissed for failing to carry out a reasonable and lawful instruction, and for causing serious and imminent risk to the health and safety of the employer's vulnerable customers and her colleagues at work. Ms Feeshatsyen then applied to the Commission for an unfair dismissal remedy against her employer, pursuant to section 394 of the Fair Work Act 2009 (Cth) (the Act). 

First prison sentence in WA for a WHS offence 

Two workers employed by MT Sheds in March last year were installing roofing on a large machinery shed at a farm in Beaumont, about 100 kilometres east of Esperance when a strong wind lifted a sheet from the pack of roof sheets they were installing and caused both workers to fall. 

Mark Thomas Withers, the sole director of shed building company MT Sheds, pleaded guilty to a total of seven separate charges, including charges related to the death of a 25-year-old worker, in March last year. 

He was jailed on Monday for eight months and his company fined $605,000 when the sentence was handed down in Esperance Magistrates Court. 

The sentence included an additional 18 months' imprisonment, suspended for 12 months. 

Withers was also personally fined $2,250 for operating a crane without the appropriate licence.   

It was one of the first cases in WA since harsher penalties were introduced for breaches of workplace safety laws in October 2018, the biggest change since 1984.

Get dressed in the boss’ time 

The Full Bench of the Fair Work Commission (FWC) recently determined that the time spent by an employee putting on and taking off personal protective equipment (PPE) during their unpaid meal break needs to be paid by the employer. 

The Case.  

Mr Seo is employed as a production line worker in a meat packaging processing line. Mr Seo raised a dispute with his employer that he was not receiving a full 30-minute unpaid meal break required under clause 15.1(a) of the Meat Industry Award 2020 (Award). 

My Seo claimed he was not receiving his full break because his employer required him to complete a range of activities, including putting on and removing various items of PPE during his break. Mr Seo applied to the FWC under a dispute resolution procedure and sought to be back-paid at overtime rates for the work done during his unpaid breaks, being 10 minutes work per day, over two years. 

First instance decision 

At first instance, Deputy President Asbury found the time spent by Mr Seo putting on and removing his PPE was not work for which he was entitled to payment under the Award or his contract of employment. In the alternative, the Deputy President found the employee was properly compensated for these activities because he was paid more than the minimum award rates and his contract allowed additional benefits to be set off against any claim for unpaid award entitlements. 

Appeal 

Mr Seo sought and was granted permission to appeal the decision. 

On appeal, the Full Bench rejected the employer’s argument that the purpose of the unpaid break clause was to provide a 30-minute break away from “productive work”. The Full Bench found there was nothing in the text of the Award that suggests breaks are only from “productive work” and that this would likely lead to inequitable outcomes between difficult occupations. 

The Full Bench found in Mr Seo’s favour, stating that if an employer requires an employee to undertake substantive activities before or after their break, then a reasonable time spent undertaking those activities is “work” and not part of the employee’s unpaid break. However, the Full Bench said this case should be contrasted with many other employees in different workplaces who choose to “wash their hands or remove an item of PPE before eating on a meal break” or employees undertaking meal break activities that could be regarded as trivial