Lessons From History - OHS Case Law

Summary of interesting  OHS cases from NSW and around Australia  

Taking a look at some past OHS cases that have been settled in the courts can give an indication about what could be expected in the future.   

There is an old saying that "a wise man listening to a fool will learn more than a fool listening to a wise man". 

There is another saying that goes something like this:- We listen in order to learn and retain information. If we are speaking, we are not listening or learning anything to add to our sum of knowledge. This is why the first step to effective listening is to stop talking! 

• Jail plus $1m fine
• Category 1 offence
• $1.3m penalty for death of a worker
• $10m Undertaking
• Farting at work
  
  The plaintiff claimed that he was bullied in the workplace and, as a result, has developed psychiatric and physical injuries He claimed damages in the sum of $1,805,138. He further complains that the defendant unlawfully terminated his employment.
• Playing cricket is work
  
  A fly-in-fly-out mineworker who injured his knee while playing cricket in between shifts brought forward a workers’ compensation claim against his employer.
• Chain of command
• Accident on way home was found to a connection to work
  
  Accident on way home was found to a connection to work - employee wins compensation A car accident resulting in an employee losing his right hand was deemed to have had a substantial connection with his employment and was therefore compensable, a commission has ruled
• Worker impaled by reinforcing bar
  
  Worker impaled by a concrete reinforcing bar. Surveyor’s Assistant falls through a penetration and becomes impaled by a concrete reinforcing bar.
• Unfair Dismissal at end of fixed term contract
  
  Can you be dismissed at the end of a fixed term contract or can you claim ‘unfair dismissal’? The Full Bench of the Fair Work Commission has recently overturned the longstanding principle that precluded an employee subject to a contract with a specified end date from seeking unfair dismissal relief upon the expiration of the contract term.
• Sexual assault in hospital
  
  Hospital guilty after a patient sexually assaults female patient. The risk was deemed to be foreseeable
• First_cat_1_Offence_in_NSW
  
  First Category 1 offence in NSW. (Reckless behaviour). A resident living in a cottage on a quarry suffered electrocution whilst having a shower in the bathroom of the cottage.
• Sex romp goes wrong.
  
  Sex romp goes wrong. A state school cleaner was awarded just over $156,000 in compensation, including $70,000 as “general damages” for non-economic loss to compensate the employee for pain, humiliation and suffering.
• Record NSW WHS Penalty
  
  NSW company has been convicted and fined AUD 1 million after the NSW District Court found that its director deliberately let a subcontractor work near live high-voltage powerlines in order to avoid delaying a construction project.
• Who is Engaged as a Worker?
  
  In the case of Safe Work (NSW) v Activate Fire Pty Ltd; Safe Work (NSW) v Unity (NSW) Pty Ltd [2017] NSWDC 66 the court had to decide whether Labour hire principals were liable for breach of health and safety dutes for exposing an employee to a risk of serious death or injury through failing to take necessary precautions.
• Record Victorian penalty
  
  Toll Transport Pty Ltd (Toll) has been fined a record $1m for contraventions of the Occupational Health and Safety Act 2004 (Vic) (Act). This fine was imposed even though the company entered an early plea of guilty is entered.
• When are you at work?
  
  When are you at work? Apparently not when you are attending a union meeting!
• Fall at work. $688,000 compensation
  
  The case of Kalos v Goodyear & Dunlop Tyres (Aust) Pty Ltd & Anor [2016] VSC 715 involved a customer service representative who tripped and fell on a metal plate protruding from the floor of a corridor at work.
• Record penalty against businessman for underpayment
  
  A rogue Brisbane businessman has been penalised a record $126,540 and ordered to back-pay migrant workers almost $60,000 in a result that sends a warning that individuals can be held personally liable for exploitation of workers.
• Rise in manslaughter cases
  
  There has been an increasing number of manslaughter and recklessness charges being pursued against individuals following work health and safety incidents.
• Ladder use - training not required
  
  A "Simple and Commonplace" taske that results in injury - the PCBU's responsibility. No training required for the use of a ladder
• Make sure that your defence team knows the right numbers
  
  NSW case where the prosecution was thrown out because the charge was made under the wrong section of the act
• Telling a ‘porky’ won’t bring home the bacon
  
  Telling a ‘porky’ won’t bring home the bacon. Employee made to pay costs when he 'dovtored' a doctor's report.
• Employment agency not vicariously liable
  
  The Court of Appeal of Western Australia considered the contentious issue of a host employer's liability for injuries sustained to a labour hire worker and finds that the labour hire agency was not vicariously liable for the actions of employee
• Tourist dies whilst on tour in Northern Territory
  
  A Northern Territory tour company has been convicted and fined after admitting to health and safety failures in the case of a British backpacker who fell to her death while posing for a photo at a popular tourist spot at Kings Canyon in Central Australia.
• The cost of failing
• Suspended gaol term
  
  A nine month suspended gaol term has been imposed on the owner of a roofing business for threatening and intimidating a WorkCover NSW Inspector.
• Enforceable undertaking
  
  Proway Livestock Equipment Pty Ltd accepts undertaking after employee injured on the work site
• Lifting of boxes is part of normal office work
  
  In the case of Hawkins v Ross Human Directions a NSW Court of Appeal decision has shown that work involving lifting and twisting creates is not necessarily a precursor to the risk of injury.
• Should you be terminated for swearing at the boss, or kissing a colleague
  
  When is going too far, really going too far? In the case of Keenan v Leighton Boral Amey, can an employee be dismissed as a result of his actions at an 'after-party'
• Who is NOT an officer of a PCBU.
  
  Who is an officer of a PCBU? In the case against a project officer, the court ruled that he was not an 'officer' of the PCBU in terms of the WHS Act.
• Powers of WorkCover NSW to force a company to produce documents
  
  In the case of Perilya Limited v Nash [2015] NSWSC 706 the NSW Supreme Court confirmed that the powers of inspectors under the Work Health and Safety Act 2011 (NSW) (WHS Act) are expansive and are not limited only to health and safety matters.
• Ensuring safety
  
  It was wrong in law to require a PCBUt to "ensure" that no harm came to its employees. It only had a duty to take reasonable care to avoid the risk of injury. This was the finding after an appeal.
• Can unreasonable behaviour be insured
  
  A common condition in insurance policies requires the insured to take all reasonable precautions to prevent risks from coming to fruition. The recent Western Australian District Court decision of Canny v Primepower Engineering Pty Ltd [2015] WADC 81 demonstrates an example of an insurer successfully relying upon a reasonable precautions condition in a policy to deny a claim for indemnity.
• Is it forseeable?
  
  Despite a number of findings that the plaintiff was overworked and distressed by the conduct of her supervisor, the plaintiff’s claimed failed because His Honour Devereaux SC DCJ found the plaintiff could not establish foreseeability.
• Employee responsible for own safety.
  
  Should an employer be found liable for a risk of which they had no knowledge and could not reasonably have known of? (Drew v State of New South Wales [2015] NSWCA 159)
• HSR loses unfair dismissal case
  
  In the case of Kaskol v TNT. the Fair Work Commission (“FWC”) ruled that the employee, Alphonse Kaskol was lawfully dismissed after he made a series of “unsubstantiated” complaints relating to his role as an occupational health and safety representative at TNT.
• Transport company, and the director, fined for false records
  
  The director of McCabe Transport has pleaded guilty to 159 breaches of fatigue management laws following an investigation into the running of his company. The charges relate to falsified work diaries, with the court hearing drivers doctored their records and worked well beyond their legally allowed time. The breaches were committed in 2011 and 2012
• Hume doors enforceable undertaking
  
  Hume Doors & Timber (Aust) Pty Ltd enters enforceable undertaking. In March 2013, a worker was injured when he was struck by a load of timber after cutting the straps that were securing the load. WorkCover NSW alleged the employer, Hume Doors & Timber (Aust) Pty Ltd, breached s19(1) of the Work Health and Safety Act 2011 (NSW) (WHS Act (NSW)) in failing to ensure the health and safety of workers.
• Theft_of_data
  
  The Federal Court has awarded $50,000 in damages to a mining company, Leica Geosystems, after a former employee was found to have breached his employment contract and copyright legislation for downloading thousands of computer files.
• What_is_reasonable
  
  Employee injured his leg on the handle of a cupboard and employer found to be guilty. The employer, Suncorp Staff Pty., Ltd., appeals and the original verdict is reversed based on a reasonable employers ability to foresee such a risk, and the expectation to be able to predict that the handles constituted any higher risk than that of minor bruising.
• When a frolic is not compensatable!
  
  When employees attend a work function, there has often been an expectation that their employer is responsible should an accident occur. In the case of Australian Leisure and Hospitality Group Pty Ltd v Simon Blackwood (2014) QIRC 105, the opposite was found.
• 117 Workers found guilty
  
  Federal Court judge John Gilmour found 117 CBI Construction workers guilty and fined them a combined $1,068,000 for walking off the job illegally.
• Fired for doing a chicken dance
  
  An employee was fired for doing a chicken dance, allegedly to mock his colleague.
• Sexual harassment worker wins after appeal
  
  Australia's Federal Court has awarded a former Oracle staffer $100,000 for general damages plus a further $30,000 for economic loss to compensate her for distress caused by sexual harassment from a colleague, plus costs. This comes after an appeal when, in the first hearing, she was awarded $18,000 and ordered to pay costs.
• Enforceable Undertaking in glass factory
  
  In June 2011, a worker, working at a factory that manufactures glass suffered burns when his clothing caught alight while performing maintenance on a glass-forming machine that he mistakenly believed had been shut down.
• Injured worker caught playing competative basketball
  
  An Adelaide paper mill worker has faced the Adelaide Magistrate’s Court after he was found to have been playing competitive basketball while claiming WorkCover benefits.
• Claim 19 years after death
  
  NINETEEN years after her husband died of mesothelioma, an Ipswich (Qld) woman Karen Hall has won the right to claim asbestos compensation. Aged just 44, Greg Hall died in May 1995, nine months after he was diagnosed with mesothelioma as a result of working with asbestos dust for twelve years between 1966 and 1978
• Throwing Stones – Not the Right Answer
  
  The SA Magistrates Court has acquitted a company of a safety charge in Perry v Exactmix Pty Ltd [2014] SAIRC 7 (6 March 2014). The charge relates to an incident in April 2011 in which a mobile plant operator had the top of his finger cut off and sustained other hand injuries after he and his supervisor tried to manually clear a blockage in the machine by throwing rocks.
• Employer beats OHS charge
  
  The District Court of NSW handed down its judgment in Workcover (Inspector Battye) v Patrick Container Ports Pty Ltd (17 February 2014), finding that the employer’s failure to document a risk assessment or provide formal training and supervision didn’t constitute a breach of the now repealed NSW Occupational Health and Safety Act 2000
• Beware of hot water before you land in it.
  
  A disability services worker, Kerry Royals, was fined $6,300 (after a 30% discount for early guilty plea and other relevant matters) and a criminal conviction recorded for significantly departing from what was required of her in her position as a carer, resulting in a client receiving serious burns to her body from scalding hot bath water. Russell v Royals { [2013] SAIRC 34}
• Is 'lippy' a cure for bullying?
  
  Bullying victim told to 'go put on some lippy'
• Does a principal contractor have a responsibility to train a sub-contractor
  
  Leightons found not responsible for failings of a sub-contractor
• What constitutes 'reasonable'
  
  In the case of Transfield Services (Australia) Pty Ltd v Wieland [2014] WASCA 41, an appeal was granted on the grounds that it was wrong in law to require it to "ensure" that no harm came to its employees. It only had a duty to take reasonable care to avoid the risk of injury.
• Be Polite
  
  Calling a workCover employee a "fat bitch", "fucking bitch" or a “donkey” is guaranteed not to win friends and influence people. This is the lesson that defendants John Chalhoub and Bakhos Khalil were taught in the Industrial Court of NSW.
• Big payout for sexual harassment
  
  In December 2013, the Federal Court of Australia granted a female employee, Jemma Ewin, $476,000 in damages, after finding she was sexually harassed by an "arrogant" contractor, Claudio Vergara.
• Sex not work - High Court decides
  
  Injury while having sex on a work trip. High Court rules that it is not a work activity and not subject to compensation
• Court defends HSR's actions
  
  The recent Federal Court decision in AMWU v Visy Packaging Pty Ltd (No 3) [2013] FCA 525 demonstrates the careful balancing act an employer faces when disciplining an employee for misconduct where the employee has raised safety concerns. Jonathan Zwart was employed by Visy Packaging Pty Ltd (Visy) in the role of a fitter and machine setter. Mr Zwart was a member of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU). Relevantly, he was also an elected health and safety representative for Visy under the Occupational Health and Safety Act 2004 (Vic).
• What is acceptable alternative work
  
  What is acceptable alternative employment. Two recent cases that give guidence on what can, and what can not be considered as suitable alternate employment
• Worker crushed by machine safe system failed
  
  A concrete product manufacturer has been penalised over safety failures that led to an inadequately trained and unsupervised worker being caught in a machine with broken interlock switches.
• Is it work? The courts don't always agree
  
  The courts recently had to decide if an injury received to an employee, Mr Kennerley was as a result of his employment with Qantas, and therefore covered by workers compensation insurance. Depending on which court you ask, the answer will be different. The employee had a motor accident whilst off duty, but was travelling to have his visa updated - a requirement for his employment
• How not to break an egg
  
  Employees play a prank on a fellow worker and tie him up, throw eggs at him and then light a fire at his feet
• Is drinking coffee work?
  
  Drinking coffee at a local coffe shop during works hours ruled not to be 'work'
• Lifting copy paper nets almost $240k
  
  Employee was injured at work when she lifted a box of photocopy paper from the floor in her office. Verdict appealed by employer and lost.
• Baida Chickens
  
  Baiada was prosecuted, in Victoria, for breaches of the OHS Act and was found guilty at first instance because it had control of the workplace and had failed to implement a safe system of work. The High Court quashed the original sentence
• Machinery supplier fined over amputation
  
  The supplier of a woodchipping machine has been fined $30,000 (plus $12,000 in costs) over an incident in which a worker’s hand was severely injured.
• Director is not 'too remote' from the company
  
  Company director is not 'too remote' from the company operations. WorkCover NSW wins case after appeal.
• The Kirk Case
  
  Appeal against OHS conviction is successful. The Kirk case changes the landscape of OHS in NSW
• Bunnings and the Potting Mix
  
  A breach of the OHS laws when a supermarket shelves collapse aand is not reported to WorkCover NSW, There was a risk to the health and sefety of employees and customers.
• Hazardous Hairdresser and OHS
  
  Having ones hair tinted my not be quite as hazard free as one may imagine and may hazve OHS and safety issues for the hairdresser. What happens when things go wrong.
• Robbery at Franklins
  
  Robbery at a supermarket deemed to be a breach of OHS safety laws. Safety policy not enforced
• Fosters $1.25m penalty
  
  Brewing giant Fosters has been fined a record $1.125m for safety failings that led to the death of a worker.
• Self employed - Safety for the disobedient
  
  Sel employed breaches OHS law. Judge rules that there is duty is to provide a risk free environment to all persons including the disobedient