I’m at the end-game in two cases involving injuries in the workplace. In both, the injuries were to fingers being put where they shouldn’t go and the penalties to the employer are potentially very large. So how can you, as an employer protect yourself against the possibilities of large penalites?
The purpose of Occupational Health & Safety legislation in all states is more or less uniform. It is there to ensure that the employer creates and maintains a safe working environment for the employee.
Occupational Health and Safety Case Study One: Food Mixer
In one of my cases, the employee in question was using a food mixer without the plunger. The appliance in question was very old, and had been used in the same kitchen for over thirty years. It didn’t have the requisite metal neck common in the more modern appliance and, thus, an employee might get their finger caught in the workings, if the prescribed plunger wasn’t used.
That is just what happened. The employee, a very experienced apprentice, by his own admission, just wasn’t taking enough care and lost a bit of his finger.
Occupational Health and Safety Case Study Two: Complex Machinery
My second case involves a worker in a food manufacturing industry. He was asked to use a particularly complicated piece of machinery and, somehow, his hand got caught in the mechanism, which relieved him of his largest right digit!
In the latter case, evidence indicates that the employee in question did not take adequate precautions before operating the machine, but there is also evidence provided by WorkCover Authority that the employee had received no training or supervision in the operation of the machine.
The client faced the spectre of a maximum fine of $55,000 and, in the event, decided to plead guilty.
In the first matter, I made strenuous representations to WorkCover that my client was not in dereliction of his duty in the training and supervision of the particular employee. We have documentary evidence that the employee had proper training in the use of the food mixer and, at most times, he had used it in the presence of one of the kitchen supervisors on duty. Indeed, by his own admission, on the particular day in question, the employee chose not to use the plunger and thereby left himself open to injury.
Notwithstanding this, this employer is also liable to a maximum fine of $55,000, not because there wasn’t adequate supervision, but because the machine could have been properly guarded even though it wasn’t.
A submission that the machine had been used for over thirty years without any troubling event, on the advice my client has been given, won’t be taken into account and, knowing the attitude of industrial magistrates to accidents in the workplace (at least in the jurisdiction in which I practice), this client has also been advised to plead guilty.
Plead guilty and lessen the sentence?
In both cases, a mere plea of guilty is not going to be sufficient to mitigate any fine imposed. In other words, just pleading guilty won’t necessarily persuade a magistrate to give you a lesser fine because you have “fessed up”.
What courts Australian-wide now want to see is the ethos of workcover legislation being implemented by employers, particularly in risk-prone industries. That ethos is the prevention of injury, which can only come about by:
- Making machinery safe,
- Educating staff in its use, and
- Supervising that use with appropriately-trained managers.
It is evitable that some machinery used in the food industry is going to be potentially dangerous. The lesson is that all businesses, big or small, must put in place preventative measures based upon the above tenents. Indeed, I think protocols should be implemented which deal with such things as:
- Training of supervisors to instruct users of potentially unsafe machinery.
- Continuing supervision and instruction of the use of that machinery by nominated parties.
- Appropriately-worded notices adjacent to any particular machinery which is potentially dangerous, and
- Close liaison with WorkCover authorities in your particular state or territory to ensure that you are keeping “up to speed” in this ever-changing area of law.
I am sure many of my readers have already been involved in WorkCover matters. If you’re subject to court proceedings, the first thing you should do is seek appropriate legal advice. My experience (and this is not legal advice) is that it is very hard (though not impossible) to defend an action where an employee has actually been injured. You must, therefore, look at ways and means of lessening the penalty which might be imposed.
What courts consider when deciding penalites
In NSW, the case law requires magistrates to deal with guilty pleas on the following basis:
- The penalty imposed must be dependent upon the seriousness of the breach and the degree to which the offender fails to ensure a safe system of work.
- The difficulties to be surmounted by the offender in taking adequate precautions to avoid the injury of employees, including such matters as time, trouble and expense, measured against the magnitude and duration of the risk in relation to the incident.
- Whether proper supervision of the method work was undertaken. This is a statutory responsibility and cannot be delegated to a party other than the employer.
- Whether the offender can demonstrate to the court that it has embraced the primary objects of workplace legislation mentioned above.
- Whether the offender has a well-documented policy and program of safety in use at the time of the accident, and
- Whether the offender has since the time of the accident taken urgent and direct steps to ensure that general safety policy is adhered to by both supervisors and employees.
All employers have a statutory responsibility in this area and it is one that cannot be ignored. Ignorance of the law has never been an excuse; in cases of work-related injuries, it can often be damning!