Worker convicted: What are your employees' work health and safety obligations?

What you need to know

• The District Court of NSW has convicted a worker who previously had an "impeccable safety record" of exposing others to a risk of death or serious injury after a customer's employee was burnt by hot fumes due to the actions of the worker while a machine was being repaired.
• While workers have rarely been charged for breaches of work health and safety laws, this decision demonstrates that regulators are prepared to hold workers to account through prosecutions over safety incidents.  
• The District Court found the employer contributed to the cause of the incident by not training its worker. The employer was separately convicted over the incident. 

What you need to do 

• Provide training, instruction and supervision to workers to ensure that they understand their own work health and safety obligations and to enable them to identify and manage the risks associated with the work that they undertake.
• Ensure that any policies, procedures or instructions that relate to workers' health and safety obligations are clearly communicated and readily accessible to workers.
• Consider whether disciplinary action may be appropriate, for example, where a worker engages in serious or wilful misconduct amounting to a breach of their safety obligations.

• PCBUs (employers) must also meet their duty to ensure, so far as is reasonably practicable, the health and safety of workers at work. Taking the above steps will assist in meeting that duty.

What are the safety duties of your workers?

The model Work Health and Safety Act imposes obligations on a person  conducting a business or undertaking (PCBU) – but also imposes obligations on workers, "other persons" at the workplace.

While at work, workers are required to:

• take reasonable care for their own health and safety
• take reasonable care that their acts or omissions do not adversely affect the health and safety of other people
• comply, so far as they are reasonably able, with any reasonable instruction that is given by the PCBU to allow the PCBU to comply with the Act; and
• co-operate with any reasonable policy or procedure of the PCBU relating to health or safety at the workplace that has been notified to workers.

SafeWork NSW v Alejandro Bocaz [2017] NSWDC 27

In SafeWork NSW v Alejandro Bocaz [2017] NSWDC 271, a worker was convicted for breaching his work health and safety duties under the Work Health and Safety Act 2011 (NSW) after a co‑worker at a customer's site was burnt by hot fumes emitted from a machine that was being cleaned.

The worker was employed by an engineering business which offered services for the repair and maintenance of extrusion machines.  The worker had over 30 years of work experience at the time of the incident, and worked with significant autonomy.

The series of events which led to the incident commenced when a customer engaged the engineering company to assist with the repair of an extruder. 

The worker initially intended to observe the machine operate in order to identify the problem and then dismantle the extruder off-site.  However, an employee of the customer requested that the extruder be purged so that it could be used again as soon as possible.

The worker sourced a purging material to be used, however it was not the appropriate material for this machine.  A material safety data sheet for the purge material indicated that the material would emit toxic fumes if it was heated above a specific temperature; and also recommended the use of personal protective equipment as a control. However, the material safety data sheet was not given to the worker.

The worker attempted to purge the extruder machine twice. On both occasions, due to the temperature of the machine, fumes were emitted, and on the second occasion the machine stopped working. The worker had set the temperature on the machine as part of the purging process.

An employee of the customer then attempted to assist in repairing the machine, while the worker was temporarily away getting tools for the job. The customer's employee was hit in the face with steam and molten material.  He suffered severe burns and required a number of skin grafts. 

Findings against the worker 

The District Court found that:

• the risks of molten material being ejected from the machine and of a person being splashed with hot material when purge material is heated beyond its recommended temperature were well-known in the relevant industry; and
• the worker did not put measures in place to address these hazards, such as providing a copy of the material safety data sheet or warning employees of the customer to stand away from the extruder or to wear PPE when it started to emit fumes.  It would have been reasonably practicable for the extruder to be purged with the correct purging agent.

The most significant causal factor, however, was the lack of training provided by the engineering company to the worker on how to recognise the risks created by the work on the extruder.  The Court considered that if such training was provided, the worker would have followed it.

In cases decided under predecessor WHS legislation, the courts have similarly noted that all relevant circumstances must be taken into account in determining whether "reasonable care" was taken by a worker. For example, matters such as the employee's state of knowledge, qualifications, expertise, experience and status (seniority), and position within the relevant business, are relevant to this issue. 

The worker pleaded guilty to the charge, and was ordered to pay the prosecutor's costs of $30,000 but was not issued a fine due to incapacity to pay. 

What does this mean for employers? 

The preparedness of regulators to prosecute workers over incidents does not mean that employers are also not at risk of prosecution.  In a separate decision, the District Court convicted the engineering  company and issued a fine of $45,000 for breaches to which it pleaded guilty (SafeWork NSW v Extrusion Machine Co (Australia) Pty Ltd [2017] NSWDC 192).

The Court noted that the risk of the worker making an error of judgment whilst undertaking work at a customer's premises was a foreseeable one, and stated that employers "must take steps to protect against risks created by negligent or inadvertent employees in the course of their work, if it is reasonably practicable to do so".

Unforeseeable behaviour of a disobedient employee may lead, however, to an event that is not reasonably foreseeable and so not reasonably practicable to guard against (see our Safety Matters Alert, "Unpredictable workers and safety risks: What are your obligations?")

PCBUs must of course meet their primary duty of care to workers. They must ensure, so far as is reasonably practicable, the health and safety of workers engaged, or caused to be engaged by the person, and workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking.

Can employers hold workers to account for safety breaches?

The model WHS Acts place duties on PCBUs, but also workers, "other persons" and officers. In meeting their own duties, it is critical for PCBUs to assist workers to meet their own duties, and to hold them to account when they do not.

Disciplinary action can be taken in some circumstances where workers commit safety breaches.  The appropriate type of disciplinary action depends on the circumstances.  In the case of termination of employment, if any unfair dismissal proceedings are brought, the Fair Work Commission is required to consider whether there was a valid reason for the dismissal related to the person's capacity or conduct, which expressly includes its effect on the safety and welfare of other employees.

The Commission has upheld decisions of employers to dismiss employees for safety breaches or more general unsafe behaviour. In the recent decision of Graham v Walker Australia Pty Ltd T/A Tenneco [2017] FWCFB 5136, the Commission dismissed an unfair dismissal claim brought by a worker who sprayed another employee with paint using a spray gun.  The worker was dismissed by his employer for serious and wilful misconduct after an investigation found that he had intentionally sprayed his co-worker, in breach of company policy and his safety obligations.  The Commission found that the worker had been intentional and recklessly indifferent in the way he used the spray gun. It found his conduct compromised the welfare of his co-worker and that worker's right to work in a safe environment free of risk to his health and wellbeing; and accordingly found that there was a valid reason for dismissal.

Authors: Trent Sebbens, Partner; Mary Azzi, Lawyer.