Kim McLagan: My main topic, Monnette. Your turn. But today, we’re looking at two recent cases that, side by side, tell you almost everything you need to know about safety responsibility and how it works in the Australian workplace, but they’re both coming from opposite directions ’cause our first case is a safety prosecution following the death of a farm worker and the second is an unfair dismissal claim. So, are you happy to talk through those ones for us?

Monnette Samo: Yeah, let’s do it. So, with that first matter, as you said, it was a safety prosecution. The employer actually ended up paying quite a hefty price for allowing their employees to decide whether to use PPE whilst they’re working.

Kim McLagan: That’s extraordinary.

Monnette Samo: I know. And in this case, with this employer, they actually did not require helmets, like they’re not mandatory in all their work. They were not mandatory for low speed work. So, there was-

Kim McLagan: But can I just interrupt? Because we’re dealing with a man operating a quad bike, and a quad bike would have to be one of the most dangerous pieces of farming equipment going around.

Monnette Samo: And he was 82 years old. The quad bike didn’t have the rollover prevention-

Kim McLagan: Protection.

Monnette Samo: Protection sort of, like, features. He was mustering sheep, like, had fallen off that bike, had severe fatal head injuries. And this company had government-funded safety equipment.

Kim McLagan: Wow

Monnette Samo: And obviously, the employee chose not to use it. And in this case, the court said that it’s just, like, completely unacceptable and a serious breach of duty that you’re allowing an employee to choose whether or not to wear PPE. And so, it’s the employer’s responsibility to identify risks and control them. But yeah, the employer had to end up, like, obviously, they pled guilty to it. They were convicted and had over half a million dollars worth of fines and about $55,000 in costs. So, weird allowing an employee-

Kim McLagan: Well, I think they got off quite lightly really given that somebody died and it was-

Monnette Samo: And the resources were there.

Kim McLagan: It was such a blatant risk and such an easy control and they just didn’t enforce it. It’s mind blowing.

Monnette Samo: Yeah, when I read this, I was horrified. But yeah, hopefully that sends out a message to the industry. So, there’s that one. And then with the second one, it was an employee who lodged an unfair dismissal. He was terminated summarily because he failed to follow the safety procedures in place at the workplace. Now, that employer was actually quite loose with the sort of features that they had in place, but a new general manager went in and they instilled this zero tolerance policy for workers operating forklifts without the high risk work license. So that’s what this employee was doing. He was just operating this forklift without the appropriate license.

Kim McLagan: But again, forklifts are so high risk. How many cases do we talk about that result in deaths from forklift operation?

Monnette Samo: Yeah. And so, this guy had been repeatedly told, “You must have a license to operate that sort of machinery,” and he didn’t, and so the employer terminated him, which I think is obviously quite reasonable.

Kim McLagan: Valid reason.

Monnette Samo: And the FEMA Commission held that it was a valid reason for dismissal. And that was because of his repeated breaches, like, for their operational procedures. And he actually admitted to breaching those safety procedures because of the operational pressures and getting things out to customers, which, obviously the commission was like, “Well, customers can wait. Like, we don’t really care about that.” So, yeah, there’s a few lessons in that. Safety is not to be delegated to an employee.

Kim McLagan: No, no. It’s always the employer’s responsibility. It’s that simple, really, isn’t it?

Monnette Samo: I would suspect so. You know, of course an employee is not going to go out of their way to get PPE. Like, for them, they’ll be like, “I can do this quickly. I’ve done it before.”

Kim McLagan: But how many people pay the consequences with that attitude?

Monnette Samo: Yeah.

Kim McLagan: And how many millions of dollars are spent?

Monnette Samo: And an accident is an accident, no matter how many times you’ve done something, you know, something can go wrong. But yeah.

Kim McLagan: Okay.

Monnette Samo: That’s those two matters side by side.

Kim McLagan: Well done. Thank you. Hold onto that. Now we’re going to go on to the case study.

Monnette Samo: So, Rachelle was a skilled People & Culture Manager, but her Operations Manager, Trent, was not helpful. She first became aware of the problems Trent was having with Sylvia during an executive meeting. Trent complained about Sylvia’s repeated failure to comply with directions regarding the safe operation of the aluminum extrusion plant. Rachelle asked, “What isn’t she doing?” Trent laughed and replied, “Everything.” The following day, while conducting her regular walkthrough of the site, Rachelle saw Sylvia sitting on the stool beside the plant with her head in her hands, quietly weeping. As she comforted Sylvia, she asked what was wrong.

Sylvia explained that the emergency stop button, which isolated the power to the plant, was located several meters away from the opening of the machine. Because planned maintenance had not been carried out, operators had to climb into the opening to realign the aluminum as it was drawn into the extruder. Sylvia explained that the problem occurred very quickly, leaving no time to press the stop button. She said this had happened twice. On both occasions, her assistant had jumped onto the conveyor to realign the aluminum while the machine was still operating. When Sylvia stopped the machine, significant damage had been caused to the aluminum sheet. Trent had become furious both times.

He issued Sylvia with a first warning after the first incident and a final warning after the second incident, which had occurred that day. Rachelle gave Sylvia a clear instruction that no one was to climb into the conveyor or into the mouth of the extruder under any circumstances. She told Sylvia she would return in 30 minutes. Rachelle then checked the HR records and found that no warnings had been recorded in the HR system. She called Trent, who laughed and said that he managed his own show. He explained that Sylvia was responsible for safety and that it was her responsibility to ensure that work was carried out safely, but she was also not to cause damage to company property.

Rachelle told Trent that his directions were neither lawful nor reasonable and that the warnings he had issued were equally unenforceable. She immediately arranged a meeting with the CEO, the Head of Safety, and the Head of Maintenance, and Trent. The Head of Safety said he was unaware of the problem but would assess it as soon as possible. The Head of Maintenance explained that rectifying the issue was a significant job and that it was already on his to-do list. Trent joked about the situation and accused Rochelle of interfering in matters outside of her area of responsibility. He said that she was HR and that this was an operations and safety issue.

He then walked the CEO through the costs associated with Sylvia’s last two interventions. The CEO appeared exacerbated and said he wanted a report on his desk by the end of the week outlining how the risk could be managed without causing further financial loss. After the meeting, Trent went to see Sylvia and asked why she had risen the issue with Rachelle. As Sylvia began to explain, Trent pointed to the door and said, “Pack your bag and leave. We do not tolerate troublemakers here.” Sylvia was already vulnerable because of the way Trent had been managing her. She struggled to sleep, was constantly anxious and sad, and felt overwhelmed by what had happened. When she arrived home, she was unable to think clearly or even move. Later that day, her children found her uncontrollably crying and in severe emotional distress.

Kim McLagan: There you go.

Monnette Samo: Take a breath. So, was Sylvia’s termination unlawful and, if so, how?

Kim McLagan: Yes, it was. So, Sylvia would have undoubtedly an unfair dismissal claim because there was no valid reason for her dismissal, and she was certainly denied procedural fairness. She’d also have a general protections claim because she exercised a workplace right by raising a genuine safety concern and reporting the unsafe management of a workplace safety issue. In addition, Trent’s conduct is likely to constitute an offence under Section 76 of the OHS Act, which prohibits discriminating against or disadvantaging a worker because they raised a safety workplace issue.

Monnette Samo: Was Trent’s conduct both individually and collectively serious misconduct.

Kim McLagan: So, yes, under Regulation 1.07 of the Fair Work Regs, Trent engaged in willful and deliberate behavior, which was inconsistent with the continuation of his employment with the company. His conduct also created an imminent risk to the health and safety of employees. He deliberately exposed them to serious harm and breached both workplace health and safety obligations and also the employer’s obligations under the Fair Work Act towards Sylvia.

Monnette Samo: So, was there a breach of workplace safety law? If so, by whom and what were the breaches?

Kim McLagan: Yeah, so in this case, the company would be prosecuted for breaching its primary duty by failing to provide and maintain a safe system of work. And liability would be attributed through the conduct and knowledge of its executive management team. And so, we’ve got here the head of maintenance, he’s likely committed reckless endangerment. He knew that there was a serious risk of harm, yet was careless and indifferent about it because he didn’t fix the alignment issue on the machine. The emergency stop button was meters away in an unsafe location and he didn’t install any guarding or implement any engineering controls to eliminate the risk of accessing the machine.

The CEO would be charged with breaching his due diligence obligations under Section 144 by failing to ensure the known safety risk was addressed immediately once it came to the manager’s attention. Trent likely would be fined or prosecuted for reckless endangerment as well by directing workers to continue an unsafe system of work, by discouraging any safety intervention, by disciplining workers, i.e., Sylvia, for working safely, and knowingly permitting work to continue that exposed them to a serious risk of injury.

Monnette Samo: Yeah, and the final question is, would Sylvia have a strong worker’s comp claim?

Kim McLagan: Yeah, no doubt at all. So, she would for work related psychological injury arising from prolonged bullying by Trent, unsafe management practices, the retaliatory dismissal by Trent, and also the traumatic circumstances just surrounding the termination in itself.

Monnette Samo: All right.

Kim McLagan: So that’s it. Yay. Another one done.

Monnette Samo: ‘Till next time.

Kim McLagan: Thanks Monnette.

Monnette Samo: Thanks, Kim.

Kim McLagan: Bye, everyone.

Monnette Samo: Bye.