Court cases, regulatory hearings and even unfair dismissal cases have drawn attention to the issue of workplace safety, and the degree to which the law requires employees to carry out their duties in a safe and appropriate way.
The instance of fast food giant McDonald’s is a prime example. Neither the company nor the employee in question disputed that she had been somewhere she should not have been — i.e. on the roof — when she fell and broke her leg.
The judgment in the worker’s favour ultimately looked past this, though, and instead focused on a technicality — namely, whether she had been on duty at the time.
My Business was flooded with comments and emails from angry and confused employers, wondering how a business could be held liable for worker’s compensation when it appeared that “common sense” and compliance with signage had not been displayed.
“We the employer should not be held responsible for ignorant and stupid decisions made by our employees. If they were held accountable for their actions, they might start acting like responsible people using that common sense that seems to have been lost in the last decade or so,” one reader said.
“Insanity... people need to be able to display common sense if there’s a claim,” commented another.
Where do the legal responsibilities lie?
Even before the McDonald’s case came to light, My Business had approached Sam Jackson of Sparke Helmore Lawyers to comment on the issue of employee responsibilities under Workplace Health and Safety (WHS) laws, and what, if any, liabilities they are legally bound to take for their own actions while on the job.
According to Mr Jackson, employees can be committing a criminal offence by not adhering to proper safety requirements.
“Employees (or workers in the states and territories operating under the Model WHS legislation) have their own WHS duties that they must comply with while performing work,” he said.
“In summary, employees must take reasonable care for their own safety, and for the safety of others who may be affected by their acts and omissions at a workplace. Breaching these duties constitutes a criminal offence.”
However, Mr Jackson said that regulations simultaneously mandate employer responsibilities, which can often override the responsibilities of workers.
“An employee’s unsafe behaviour may be taken into consideration by a court when assessing whether the employer has taken all reasonably practicable steps to provide a safe workplace. However, it is the responsibility of the employer to ensure that all reasonably practicable steps are taken,” he explained.
“For example, by providing and maintaining safe plant and systems of work, and by providing necessary information, instruction, training and supervision to employees to enable employees to perform their work safely, and without risks to health.”
Mr Jackson went on to say that human error is to be expected in the workplace, but the degree to which it is deemed deliberate and/or negligent will vary on a case-by-case basis.
“Employee behaviour can range from inadvertence, inattention or haste to foolish disregard of personal safety, through to deliberate non-compliance with an established safe system of work,” he explained.
“Because of this, the courts have consistently stated that an employer’s responsibility for the safety of its employees will not be discharged unless it takes an active, imaginative and flexible approach to potential dangers, in the knowledge that human frailty is an ever-present reality.”
Asked specifically about the concerns many employers have about being held legally liable for poor decisions or actions by their staff — despite all of the relevant training, signage, equipment, supervision et al — Mr Jackson said that the onus is for companies to take “all reasonably practicable steps” to provide and maintain safe working conditions.
“If an employee actively flouts established procedures and an incident or other possible breach occurs, then the employer may have a defensible position if it provided and maintained safe plant and systems of work, and provided the relevant employees the necessary information, instruction, training and supervision to enable those employees to perform their work safely, and without risks to health,” he said.
Like all things compliance-related, documentation is key for employers to prove they had taken proper actions to comply with safety laws and deliver a safe working environment, Mr Jackson said.
“Evidence might include things such as maintenance records for plant, policies and procedures relating to the work tasks involved, training records to demonstrate the information, instruction and training provided to the relevant employees and details of the supervision arrangements in place,” he said.
Adequate supervision of employees is also a component to workplace safety under the law, he explained. But of course, in many roles, positions and locations, direct supervision simply isn’t possible, feasible or practical.
But that does not mean employers are exempt from providing supervision altogether, Mr Jackson said.
“If an employee works predominantly without direct one-on-one supervision, the necessary supervision an employer must provide may include requiring supervisors to shadow the employee on shifts from time to time, conducting spot audits of compliance with safety procedures or monitoring safety through other means, such as customer/client feedback,” he said.
“Ultimately, the level of supervision required will depend upon the skill, experience and training of the employee involved, the nature of the work being undertaken and the risks to health and safety associated with the work.”
Can employees be sacked for breaching safety rules?
In some instances, it is perfectly legitimate for employers to instantly dismiss a worker for non-compliance with safety rules and regulations.
According to the Small Business Fair Dismissal Code (2011), available on the Fair Work Ombudsman website, “it is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures.”
The onus, in this case, is on a breach being a serious one.
For less serious breaches, employers may still be able to use this as a justification for terminating someone’s employment, where warnings (preferably written) have been provided to the relevant employee but they have still failed to meet their safety requirements.