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August 2017
In this issue · Failure to notify the regulator when a notifiable even occurs can be an expensive error · Unfair Dismissal cases swing against the employer · Is ‘Double Dipping’ allowable? · The cost of ignoring an order · Builder fined one million dollars · Nine people have been killed in quad bike related incidents in the first half of this year. · Stripper hit with stray bullet. Is she entitled to workers comp? Failure to notify the regulator when a notifiable even occurs can be an expensive error.
Case 1 - Victoria. A worker employed as a bindary tradesman operating printer machines was working on a saddle stitcher machine that staples and cuts books.
At the time of the incident he was working on the stitcher machine, the stitcher door was open and the machine was operating. His hand was knocked by the staple mechanism and crushed in the stitcher. He suffered a torn thumb muscle, ligament damage and a bone fracture which required surgery.
Modifications were made to the stitcher within two days of the incident and upon inspection WorkSafe found that the interlocking device was working and when the sliding door was opened the machine stopped.
The offender, the printing company was charged with failing to provide safe plant, failing to notify WorkSafe and failing to preserve the incident scene. The offender pleaded guilty and was, without conviction, fined $15,000.00 and ordered to pay costs of $4,000.00.
Geelong Magistrates’ Court
Case 2 - An eight week old infant attended the Waterfall Gully Maternal Child Health Centre with her mother for her routine health assessment. During the consultation, the infant was placed on the floor in the middle of the consultation room. A heater guard fell, striking the infant on the forehead. The infant sustained a head injury. She was treated at Hospital where she remained an inpatient for two days.
An issue with the heater guard had been identified previously, over four years prior to the
incident occurring, when a risk assessment report was provided to the Offender. Since the incident, all processes
in regards to occupational health and safety issues have been reviewed.
The Offender was charged with one charge under section 23(1) of the Occupational Health and Safety Act 2004 for failing to ensure that persons other than employees were not exposed to risks and two charges under sections 38(1) and 38(3) for failing to notify WorkSafe and provide a written record of the incident. The Offender entered into an Enforceable Undertaking with WorkSafe and on 13 April 2017, all charges were withdrawn.
Dromana Magistrates’ Court TOP
Unfair Dismissal cases swing against the employer
The success rate of employers in unfair dismissal cases has dropped below 40% for the first time,
according to new
figures. Is ‘Double Dipping’ allowable? There is a basic principle that a person cannot be compensated more than once for the same injury – also known as the principle of ‘double recovery’. Using this principle a properly constructed settlement deed can assist in preventing further claims by an employee. Ms M. suffered a psychological injury at work. After the injury, she made both a claim under workers compensation legislation for the psychological injury and a complaint under the Disability Discrimination Act 1992. Ms M. settled the discrimination complaint in exchange for her employer paying her $8,700. The deed between the parties contained a limited release; that is, Ms M. released her employer from all claims except claims made under workers compensation legislation. After that settlement, Ms M. claimed
permanent impairment compensation for the injury claimed in the workers compensation claim. The employer denied
this claim because of section 151A of the WC Act – the employer said the payment made under the deed was damages
for the same psychological injury. Initially, the Arbitrator found for the employee – generally because the release in the deed excluded claims under workers compensation legislation. However, on appeal, the Commission found that the payment was indeed damages for the same psychological injury. The Commission took into account the fact that the medical report referred to in the deed was almost identical to the medical report relied on by the employee in her workers compensation claim. This meant that the employee was not entitled to compensation – even though the release in the deed excluded claims under workers compensation legislation. The cost of ignoring an order A Canberra carpenter and his business have been fined more than $38,000 for ignoring an order to pay compensation to an unfairly sacked apprentice. The Fair Work Commission ordered Heath Wright and his company HW Carpentry Solutions pay $7650 compensation to the worker after it found he had been unlawfully dismissed from his job in 2014. But Mr Wright and his business failed to pay the money, despite repeated approaches from inspectors, prompting the Fair Work Ombudsman to launch legal action in the Federal Circuit Court. Judge Warwick Neville fined Mr Wright $6426 and penalised his business $32,126 for breaching the Fair Work Act by failing to comply with the order. The worker was employed as a full-time, first-year adult apprentice by the carpentry business for 12 months before he was sacked in February 2014. Judge Neville noted in his recent decision the unfair dismissal and failure to pay the compensation had caused the employee significant financial hardship and he hadn't been able to secure a permanent job until May 2015. Fair Work Ombudsman Natalie James said in a statement the fines were a reminder a "deliberate disregarding" of commission orders was serious, particularly in cases where it caused a worker significant financial hardship. Is a rodeo rider a worker? Mr Gajkowski is as a 22-year-old former bull rider who, at the time of his injury at the age of 18 years, was also undertaking a butchery apprenticeship. He had been riding animals at rodeos since the age of nine, when riding poddy calves, and then graduated to steers. At the age of 14 he won the Australian Title for steer riding. By the time of injury, he had progressed through the ranks to be a senior bull rider. He was very successful at the pursuit, and had ambitions of moving to the USA in 2015 at the completion of his butchery apprenticeship to progress his career with The Professional Bull Riders. Unfortunately, on 4 April 2014, Mr Gajkowski fell from a bull during a rodeo at the Camden Show, and suffered severe brain injury. This injury has had catastrophic consequences for his quality of life, and for his family. The question facing the courts was, is
Mr Gajkowski an employee and therefore entitled to compensation? Clause 15 of the Workplace Injury Management and Workers Compensation Act 1998? States ……. A person engaged for fee or reward to take part: (a) as a boxer, wrestler or referee in any public boxing or wrestling contest in a stadium or place to which the public is admitted on payment of a fee or charge, or ……… as an entertainer in any public performance in a place of public entertainment to which the public is admitted on payment of a fee or charge, ……… is, for the purposes of this Act, taken to be a worker employed by the person conducting or holding the contest or public or other performance. The decision of the court was:- · The applicant is taken to be a worker pursuant to Schedule 1, Clause 15 (1) (c) of the 1998 Act for the purposes of the Acts. · The applicant is entitled to weekly compensation in the periods claimed. · The applicant is entitled to compensation for medical expenses pursuant to section 60 of the 1987 Act. See also the American case of the stripper- below A Supreme Court jury convicted Peter Francis Colbert, 55, of manslaughter over the death of 55-year-old grandfather Robert Brimson and endangering the life of another driver who had a near-miss just days earlier. Mr Brimson died when the brakes of the 1994 Mitsubishi tautliner – nicknamed “The Big Girl” – failed, forcing him to drive into a Stobie pole to avoid other vehicles. Colbert’s conviction is understood to be the first time a company owner has been held criminally responsible for an employee’s death because of work-practice negligence.
In his evidence, Colbert refuted claims he had been repeatedly warned the truck was dangerous. He also denied one
employee had told him to “get the f . . . ing brakes fixed” during a phone call prior to Mr Brimson’s
death. Colbert said he had little knowledge of the braking system in trucks and had left their maintenance up the company mechanic, who had not informed him of the imminent danger. The maximum penalty under the South Australian WHS act Sec31 (Reckless conduct):- “in the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$300 000 or 5 years imprisonment or both;” The lessons to be learned from this unfortunate story is that when a WHS duty holder is told about a safety issue, that issue should be addressed ASAP.
Builder fined $1,000,000 for Category 2 offence A building company has been fined $1 million plus costs of over $50,000 as a result of a breach of Sec 19(1) of the NSW WHS act 2011. Work was taking place on a new construction close to high voltage overhead electricity cables. Despite multiple prohibition notices, a worker suffered burns to 30 percent of his body from contact with the power lines. The maximum penalty for a category 2 offence is $1,500,000 (exposing an individual to a risk of death or serious injury or illness.)
Nine people have been killed in quad bike related incidents in the first half of this year. According to Safe Work Australia figures, five of the fatalities have occurred in New South Wales while the State of Queensland has recorded two quad bike fatalities. The remaining two fatalities have occurred in South Australia and Victoria. Quad bikes are a major cause of death and serious injury in rural workplaces. Safe Work Australia says many of the incidents are associated with rollovers. In 2016, there were 10 quad bike-related fatalities in Australia. The fatalities included workers and non-workers. The safety watchdog says 50% of quad bike fatalities in 2016 were related to rollovers.
Stripper hit with stray bullet. Is she entitled to workers comp? Are strippers employees or independent contractors? There can be a material difference in the case of a workers compensation claim. LeAndra Lewis worked as an exotic dancer at Studio 54 Boom Boom Room in South Carolina. During a performance, a fight broke out and Lewis was struck in the abdomen by a stray bullet. She suffered severe damage to her internal organs, including the loss of a kidney. The shooting also left her with substantial scars. Her workers’ comp claim for temporary total disability benefits and medical treatment was declined after a workers’ comp commissioner found Lewis was an independent contractor. The appellate panel of the workers’ comp commission agreed as did a state appeals court. Recently,
the South Carolina Supreme Court took up the case. 4-part test The state’s highest court said determining whether a worker is an employee eligible for workers’ comp involves a four-part test. 1) Is there direct evidence of the right of exercise or control of the employee by the employer? In Lewis’s case, the supreme court noted the club required the dancer to: a) pay a set tip-out fee; b) undergo a search; c) review the club’s rule sheet; d)stay until the end of her shift; e)perform to music the club chose; f) perform V.I.P. dances when requested by customers, and; g) perform topless. Given all the factors, the court found this factor weighed in favor of finding that Lewis was an employee. 2) Did the employer furnish equipment for the employee to perform her job? The appeals court had found that, “From the standpoint of both the club and its customers, Lewis brought her own ‘equipment’ for her work.” By “equipment,” the appeals court meant her body. The supreme court said it disagreed that a person’s body can be considered equipment. It also noted that, other than Lewis’s costume, the club provided: a) her performance space; b) a stage with a pole; c) tables; d) a sound system; and e) the music she danced to. So on the second question, the supreme court found the evidence pointed to an employee relationship. 3) How was the worker paid? When considering this question, a court looks at whether the worker was paid by the hour and how the worker filed her taxes. The worker was paid more or less, directly by the customers. On this factor, the court ruled the evidence pointed to an independent contractor relationship. 4) Did the employer have the right to fire the worker without risk of repercussions? With an independent contractor relationship, the contractor often has the legal right to complete the project if it’s prematurely interrupted. The court noted: a) The worker would be fined for failure to comply with rules, and failure to pay any fine would result in her firing. b) The club could also decline to let her in for not having the desired appearance. So on the fourth point, the supreme court said it looked like an employee relationship. On three of the four points, the South Carolina Supreme Court said it appeared Lewis was an employee. As a result, the court said the weight of the evidence was in favour of finding Lewis was an employee who was eligible for workers’ comp benefits. One justice dissented, agreeing with the interpretation of the appeals court. So it would appear that she was entitled to cover even if she never enjoyed cover during her act. Similar logic would probably apply in Australia. (LeAndra Lewis v. L.B. Dynasty dba Boom Boom Room Studio 54, South Carolina Supreme Court, No. 2012-213376, 3/18/15) Just for fun:- Only in the USA:- Richard Eggers, a 68 year old native of Des Moines, was fired from his job at a Wells Fargo bank because he had committed a crime. Seems like the grounds are reasonable enough, right?
Well, not when you take into account the fact that this crime was ” It could just be me, but it seems that in this case they wildly misunderstood what “money laundering” actually means”. Safety Sign "Falling objects can be brutal, so wear your hard hat to protect your noodle". Be Serious Tom's tyrant boss called him in and said, "Tom, you have been complaining that the company doesn't do enough when it comes to safety. What would you like to see us do?"
Without blinking an eye, Tom's boss said, "Tom, what would you say if I gave you everything you just asked for and threw in a 20 thousand dollar bonus for coming up with the idea?" Tom gasped. "Are you joking?" he asked. "Of course," said his boss, "Aren't you?"
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Colleague stated that the sliding door could always be opened and was sometimes left opened while
the stitcher was in operation. The offender acknowledged there was a design flaw with the plant and as such
the interlocking device did not shut off the plant when the door was opened. 
committed way back in 1963. Was it murder? Actually, it turned out that Eggers had used a
cardboard cut out of a dime to operate a washing machine in a Laundromat when he was a teenager. Eggers was
caught up in new federal banking regulations, which forbade the employment of anyone who has been convicted of
a crime involving “dishonesty, breach of trust or money laundering.
All information is of a general nature. Readers are advied to make
their own enquiries before relying on any material in these
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