Unpredictable workers and safety risks: What are your obligations?

What you need to know

• The District Court of NSW has found a glass manufacturer not guilty of an offence under the Work Health and Safety Act 2011 (NSW) following an incident where one of its employees was fatally injured while removing heavy glass sheets from a trolley.
• The Court found that a risk of injury or death was not reasonably foreseeable because the employer had adequate systems for training and supervision in place and the incident occurred by reason of the employee acting "irrationally" and against instructions.
• The decision confirms that unforeseeable behaviour of a disobedient employee may lead to an event that is not reasonably foreseeable and so not reasonably practicable to guard against.
• Alleged breaches of safety obligations will often involve a "human element" of conduct by employees. If the employee conduct is clearly contrary to well established systems of work, while it was difficult to do so under previous safety legislation, employers may now wish to defend any prosecution concerning such an alleged breach.

What you need to do

• Review your systems of work to ensure that they take into account reasonably foreseeable risks that may occur due to careless, inattentive or inadvertent behaviour of workers.
• Provide regular training and supervision to all workers to ensure they understand the established procedures required to perform certain kinds of work, and the risks of not following them.

Does your organisation have systems in place to ensure the safety of its workers? What happens when an employee does not follow your systems of work or wilfully violates them? In the recent decision of Safe Work NSW v Wollongong Glass P/L [2016] NSWDC 58, the District Court considered whether an employer breached its obligations under the WHS Act in relation to an employee who was fatally injured while handling heavy sheets of glass, where the employee acted irrationally and contrary to the employer's systems of work.

Foreseeable risk and disobedient employees?

Under the WHS Act (and other harmonised safety laws), a person conducting a business or undertaking (PCBU) has a primary duty to ensure, so far as is reasonably practicable, the health and safety of workers.

The duty requires knowledge of the risks that emanate from the PCBU's undertaking. Foreseeability of the risk is an element of this knowledge. PCBUs must put in place measures to eliminate or minimise foreseeable risks. This primary duty has been described by the courts, under predecessor safety legislation, as an obligation to provide a risk-free work environment not only to careful and observant employees, but also to hasty, careless, inadvertent, inattentive, unreasonable or disobedient employees.

The question that arises is, what conduct of unreasonable or disobedient employees can be said to be foreseeable and able to be guarded against?

The Wollongong Glass case

The employer in Safe Work NSW v Wollongong Glass P/L [2016] NSWDC 58 operated a factory where its employees cut down large sheets of glass to smaller sizes.

On 6 March 2013, one of the employer's employees was cutting glass sheets and required access to a sheet which was stacked on a trolley behind other glass sheets. The employee was using a crane to assist him to move the glass sheets that were in front of the specific glass sheet he required and to put them onto another trolley.

One of his co-workers (the deceased), offered to assist the employee to speed up the process. The co-worker wanted to use the crane, for his own work, that was being used by the employee. The employee resisted the assistance of the co-worker on multiple occasions, however, the co-worker insisted. They began a process of moving the sheets where the employee would lean the sheets towards the co-worker and the co-worker would support the sheets with his hands. The sheets weighed approximately 80kg each. Eventually, the co-worker could no longer support the sheets and they fell onto him, causing fatal injuries.

The evidence established that the co-worker was under the influence of cannabis at the time. The employee had repeatedly told the co-worker to use the crane, and that he did not wish to work with the sheets in the way insisted on by the co-worker.

The employer was charged with a breach of the WHS Act in that it had a health and safety duty which it failed to comply with by exposing the co-worker to a risk of death or serious injury. The employer pleaded not guilty.

Measures to address the risk

The prosecution argued that there was a risk of glass sheets falling and crushing people while attempting to remove one or more of the glass sheets stacked in a trolley. It argued that the way the glass was handled during the incident was an accepted method used at the factory.

It alleged that the employer had failed to ensure the safety of its employees by not taking reasonably practicable steps to eliminate or minimise the risk.

The prosecutor said that measures should have been put in place to address the risks, such as:

• ensuring use of an overhead crane and "pinch grab" to move glass sheets;
• informing and training workers;
• prohibiting workers from attempting to support multiple glass sheets by hand;
• warning and directing workers against standing in the fall zone of glass sheets; and
• providing a system of supervision.

Measures not "reasonably practicable"

The Court found that the prosecution failed to prove its charge beyond reasonable doubt. None of the measures the prosecution identified were found to be reasonably practicable, because the risk posed was not foreseeable.

The Court found that it was not reasonably practicable to prohibit workers from attempting to support multiple glass sheets by hand because it was not a practice adopted in the factory.

The Court was satisfied that the employer took appropriate steps to eliminate or minimise the risk of death or serious injury to the co-worker by training him not to manually handle heavy or large glass sheets and to remain clear of the fall zone. The co-worker behaved in a way that was out of character on the day by not complying with his training and by not listening to the employee.

Workers had also been instructed not to stand in the fall zone when lifting or handling large or heavy glass sheets (and the evidence established that it was well known to workers that doing so would be unsafe).

None of the witnesses at the trial had ever seen a worker do what the co-worker did at the time of the incident. In fact, his actions were contrary to the instructions given to workers and so found to be not reasonably foreseeable.

"The precise mechanism of the incident occurred by reason of the deceased acting irrationally and... against instructions and with a significant disregard for safety. That set of circumstances was not reasonably foreseeable".

District Court

The Court based its decision on other findings and conclusions, including that:

• the employer had adequate training in place;
• the training was enforced by supervision; and
• the crane was always used in the factory where glass sheets were too heavy to be lifted manually by two people.

The Court also found that it was not reasonably practicable for the employer to provide the training by using a Safe Work Method Statement (SWMS). This was for reasons including that while a SWMS may provide evidence of a safe work procedure, it did not mean that workers had been adequately trained in the content of the SWMS or that they would comply with it.

The "supervisor"

Section 244(1) of the WHS Act provides that any conduct engaged in by or on behalf of a body corporate by an employee acting within his or her actual or apparent scope of employment is also conduct engaged in by the body corporate.

The Court found that the prosecutor could not rely on section 244(1), as the employee was not a supervisor and had no responsibility for overseeing the co-worker's activities. It was not within the actual or apparent scope of the employee's employment to prohibit, warn, train or supervise workers such as the co-worker. The Court also found that the employee was not acting within the scope of his employment when he failed to use the crane because he knew that what he was doing was unsafe, and he exposed the co-worker to a very grave risk. These actions were not in accordance with his training and experience, his duties as a worker under the WHS Act, and the express terms of his employment contract.

Impact of the decision