How often do employers ask employees to help them assist with a domestic or pet projects? Jobs that draw upon the assets of the business but involves non-core skills to undertake the work?
That is what happened in SafeWork NSW v O2 Motorsport and Weissel. Mr Weissel was the sole director O2 Motorsport. O2 Motorsport serviced and maintained motor vehicles. Mr Weissel asked a young employee and work-experience student to make bio-fuel for him personally by using a homemade device with little supervision. The elements of the fuel caught fire and exploded injuring the employee and causing burns to 7% of his body. Both the company and the Mr Weissel were convicted and fined, Mr Weissel for breaching his due diligence responsibilities. Critical to the findings was Mr Weissel’s knowledge that his knowledge and the process was drawn from the internet, was poorly documented and involved methanol and sodium hydroxide and the use of a naked flame. All things that placed him on notice the process was inherently risky and there was no suitable controls.
This could be any workplace where work is undertaken on an ad hoc basis. People in an office fixing an electrical fault. Managing a different and unusual issue in any workplace. The critical part of the judgment is the Officer liability for a known risk, failure to address that risk and placing employees at risk of serious injury or death. Mr Weissel was lucky he was not charged with a more serious offence
Lessons
- Mr Weissel would have been liable in all jurisdictions because he knew the risk. However on Model Safety Law states and territories, even if he didn’t, but ought to have known the risk he would be liable
- Whenever you are doing work which is novel, unexpected or non-core, step back, assess the risks and ensure you have a process in place that controls that risk. If it Is not your expertise-don’t do it. A jack of all trades is Hazard.
Win Some, Lose Some – Qantas
After Qantas winning the personal leave case only a day ago their winning streak came to an abrupt halt with the Full Bench of the FWC rejecting their argument that FWC has no jurisdiction hear stand down arbitrations. Qantas and Jetstar have applied to the Federal Court seeking an injunction to stop the FWC hearing. The cases is fascinating as it tests some of the key elements of Stand down. For the maintenance workers was there a ‘stoppage of work’. Yes the planes can’t fly but there was still some maintenance work to do. Was it a decision that Qantas and Jetstar could not reasonably be said to cause-the Union arguing this was a business a decision not caused by COVID-19 alone. This really is the test case on COVID-19 stand downs for many industries- so watch this space.
