Workplace health and safety laws in Australia can be a bit tricky to wrap your head around, but compliant application can lead to a safer workplace – as well as getting into less trouble with the Fair Work Ombudsman.
You may think you have a solid policy and procedure structure; but these next examples will show how much the workplace can resemble the wild west.
1. Fiery Lunchtime Antics
Two site supervisors were involved in a lunchtime “prank” that saw an 18-year-old apprentice electrician squirted with flammable liquid and set alight.
One of the supervisors was convicted of a Category 1 offence under the Work Health and Safety Act 2011 for engaging in reckless conduct due to his role in the prank and fined $12,000, in addition to incurring court costs and levies. According to the South Australian Employment Tribunal, he failed to exercise his health and safety duties as a supervisor by taking steps to stop the prank, which exposed the employee to a serious risk of injury or death.
The second primary perpetrator is yet to face court, for charges against him. After igniting the flammable liquid on the apprentice’s boots and shirt, he is alleged to have also chased the apprentice around threatening to set his pants on fire.
It’s not just the perpetrators who have been hauled before the courts. The employing company is also being prosecuted for a Category 2 offence for failing to comply with their health and safety duties thus exposing the employee to serious risk of physical and psychological harm and could face fines up to $1.5m under the Work Health and Safety Act 2011.
While the employee did not suffer serious injuries the conduct towards him presented a serious threat to his health and safety in the workplace.
2. The Fart Bully
An engineer from Melbourne took his former employer to the Supreme Court of Victoria, claiming that a co-worker was bullying him — by farting on him.
A Mr Hingst, who said that his former supervisor would “lift his bum and fart”, was chasing over $1.8m.
According to news.com.au, he told the court that “flatulence was a form of bullying” and that his coworker (who Hingst apparently called ‘Mr Stinky’) was a serial farter.
“I would be sitting with my face to the wall and he would come into the room, which was small and had no windows,” Hingst is reported to have said.
“He would fart behind me and walk away. He would do this five or six times a day.”
Hingst, who took the brave step of representing himself in this odd case, claimed Mr Stinky’s actions caused him severe stress and psychiatric injuries, and was part of a concerted effort to drive Hingst out of the company.
Hingst lost the case, with the judge ruling that Hingst was motivated by revenge for his termination from the company and that there was a lack of evidence to support his claim for bullying arising out of the “farting incidents”.
3. How’s That One?
How do you best reset your body clock? By playing cricket of course!
That’s what fly-in-fly-out mine worker Benjamin Backhouse decided to do at work. However, in the course of bowling bouncers and performing reverse sweeps, Backhouse injured himself.
According to the ABC, the ‘spontaneous’ decision to play a 2-hour cricket match came at 10am, after Backhouse had finished work at 6am that morning, and spent enough time in the mess hall to consume 10 standard drinks before the mess hall closed at 9:30am. So reports the ABC.
When he finished his shift, Backhouse had finished his seventh night shift in a row and decided to play cricket to stay awake through the day and re-set his body clock for his upcoming cycle of day shifts.
The South Australian Employment Tribunal concluded that there was a sufficient connection to his work and the employee had exercised his duty by managing his sleep cycle to reduce risk of injury from fatigue whilst at work. In a decision that may come as a surprise to employers, the SA Employment Tribunal awarded Backhouse damages as compensation for his injury.
4. A Torrid Workplace Affair
A High Court heard the appeal case involving a public servant who was injured while engaging in intercourse during a work trip.
The woman — name withheld — was having sex with a man in a motel room her employer had booked for her.
During the act, “a light hit her in the face injuring her nose, mouth and a tooth and also causing a psychiatric adjustment disorder”, according to an ABC report. The incident was severe enough she had to be taken to hospital.
The Federal Court initially ruled in favour of the employee, saying that if the woman had been injured playing cards in her motel room she would get compensation, and that this incident was no different.
After an appeal to the High Court, the case of the employer and its insurer was accepted. They had argued that they weren’t liable as the incident had happened after hours.
5. Ladder Training
A worker at a vet claimed that her fall from a stepladder was caused by her employer not taking enough steps in its duty of care. Ms Cowie alleged that no safe use of the stepladder training or risk assessment was carried out and nor was an alternative method of storage offered to her.
At the time of her fall, Cowie had been placing blankets on a shelf that was at eye level. She was two steps up on the stepladder, and while it couldn’t be determined how she fell, it was deemed a likely scenario was that the ladder tipped as she overreached when placing the blankets.
The ACT Supreme Court found that using a stepladder was a relatively simple task applied on a daily basis which lessened the requirement for special training and that the elimination of all risks is not possible, concluding that a reasonable employer would not have adopted an alternative method of storage.
WHS is a tricky business. Sometimes, employees claim spurious things, but if you have a strong WHS culture, including enforceable procedures and policies, you may avoid headaches in the courts.
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