Employers’ duty of care for employees

“Worker who slipped on ice awarded damages for breach of duty of care”

Rhodin v Coles Supermarkets Australia Pty Ltd [2019] ACTSC 207

Executive Summary
The Supreme Court of the ACT found that Coles breached its duty of care to a worker who slipped on ice in a cool room after she reported the hazard days earlier.

Background
The worker was employed in the delicatessen of a Coles Supermarket in Gungahlin, ACT. On Friday 31 May 2014 she entered the seafood cool room of the deli and noticed ice on the floor. The worker also noticed that there were two seafood tubs on the floor and each was missing its plug.

She reported the ice to the second in charge of the deli and recorded her observations in a “communications book” used by the supermarket to record incidents.

The worker then left work for the day and did not return until the following Monday morning. During that shift, she entered the cool room and slipped on ice on the floor. In the moment, she attempted to grab a nearby metal trolley to prevent falling but instead crashed into the trolley with the weight of her body against her left wrist.

In the period after the accident, the worker suffered some pain and bruising but continued to work in the deli on the assumption that her injuries would resolve themselves. Unfortunately, they did not.

The worker subsequently brought a negligence claim against Coles alleging that Coles had breached its duty of care to her and this breach resulted in her injuries and subsequent disabilities.

The question for the Court was whether Coles had a duty of care, whether that duty of care was breached and if so, what compensation was owed to the worker.

Decision
The Court considered the evidence of the worker regarding her discovery of the ice in the cool room on the Friday and her subsequent slip on the following Monday.

The worker told the Court that, on the Friday, she observed the ice on the floor and the seafood tubs missing their plugs. She theorised that the ice had either spilled from the tubs or had melted and refrozen on the floor of the cool room.

At the time, the worker then discussed the ice in the cool room with the second in charge of the deli and during that conversation, they touched the ice to confirm that it was in fact ice. The worker said that they then raised the matter with the second in charge of the whole supermarket and the worker recorded the ice and the seafood tubs without plugs in the communications book.

It was not generally disputed, and the Court held, that Coles had a duty to maintain a safe place of work for the worker and other workers, including in circumstances where there is the possibility of surfaces becoming slippery and workers falling as a result.

The Court found that there was a real and foreseeable risk that ice might form on the floor of the cool room or that ice might leak from a tub and would not melt quickly owing to the cool nature of the room.

The Court found that it was incumbent upon Coles to have a system in place to prevent liquid, including ice, from leaking on the floor and to remove any ice which did form.

The Court held that Coles had a duty of care to take positive action to eliminate risks to workers and to provide safeguards and prevent accidents.

The Court held that the presence of ice in the cool room on the Friday, as identified and reported by the worker, presented an obvious risk of injury.

The Court held that the worker’s accident occurred because of Coles’ conduct in that:

  • it failed to ensure ice did not escape the tubs,
  • it failed to ensure the floor of the cool room was free from slippery substances;
  • it failed to warn the worker that the floor was not free from slippery substances;
  • it failed to prevent entry to the cool room in circumstances where the floor was not free from slippery substances;
  • it failed to devise, institute and maintain a safe system of work;
  • if failed to implement an adequate system of hazard identification and management;
  • it failed to take reasonably practicable steps to minimise the risk of injury; and
  • it exposed the worker to a risk of injury which it knew or ought reasonably to have known.

Coles attempted to argue that the worker’s own negligence contributed to the accident and her injury. Specifically, that the worked had failed to:

  • report or properly report the existence of ice on the cool room floor;
  • take any action to remove ice from the floor despite it being within her capacity and level of experience to do so; and
  • take reasonable care or proper precautions for her own safety despite knowing that ice had recently been found on the floor.

The Court rejected these arguments noting that an employer’s duty to provide a safe system of work is not discharged by leaving it up to its employees to devise the system.

Ultimately, the Court held that Coles owed a duty of care to the worker, it breached its duty of care and that the breach caused the worker’s injuries.

The Court considered the question of compensation and found that the employee had suffered a number of disabilities as a result of the accident.

The worker had also suffered economic loss and had incurred a range of expenses including medical expenses.

The Court largely accepted the submissions of the worker and ordered that she be compensated for past and future non-economic loss, loss of earning capacity, domestic assistance, and past and future medical expenses. The worker was also awarded legal costs.

What can your business learn from this decision?

All employers have a non-delegable duty to provide safe systems of work for employees. This duty compels employers to take positive action and not shift responsibility to employees. In this case, Coles failed in its duty because it did not take reasonable action to address the ice situation after it had been reported by the worker.

Duty of care and contributory negligence

“Employee injured in cattle loading accident awarded damages but found to be contributorily negligent”

Watson v Gregory Spencer Ward t/as Ward’s Stock Transport [2019] WADC 118

Executive Summary
The District Court of Western Australia has found that an employer breached its duty of care to an experienced employee by failing to specifically direct him not to enter a road truck cattle pen in the presence of bulking bull, despite the risk being obvious.

The Court also found that the failure of the experienced employee to take time to find assistance before entering the pen (and subsequently being injured by the bull) fell below the standard of an employee in his position acting reasonably for his own safety – in this sense, his own negligence contributed to the accident and his injury.

Background
The employee was an experienced driver of cattle transport trucks. He was employed by the employer because of his experience and the high regard that the employer and others in the industry had for him.

In February 2015, the employer was one of several contractors engaged to transport about 4000 cattle from Gingin to Fremantle wharf in Western Australia.

The employer directed the employee and three other drivers to attend the job. They drove to the feed lot to load their trucks and queued for some time behind other trucks also picking up cattle.

The employee’s truck was behind one of his colleagues. At the time the colleague was loading his truck, the employee was speaking to another person assisting drivers at the feed lot. The employee observed his colleague swearing and opening and closing the door to his trailer.

When the employee approached his colleague, the colleague said that a bull that had entered the trailer was not entering the pen inside as expected, meaning that he could not close the pen gate. The colleague said that each time he opened the trailer door, the bull would look at him as though he were going to come at him.

The employee and the colleague gave different versions of what happened next. The employee claimed that he and his colleague agreed to enter the trailer together to pressure the bull into moving into the pen. Once they entered, the bull slipped on a part of the flooring of the trailer and stomped. This made the colleague nervous, who then left the trailer and left the trailer door open. The bull saw the open door and “collected” the employee as it ran for the open door.

The colleague claimed that he never agreed to enter the trailer with the employee and did not do so. He said that he knew (and it was generally known) that two people should not enter a trailer at the same time as the risk of an incident and someone being injured significantly increases.

In any event, the employee sustained injuries to his back and shoulder in the accident when he collided with the bull.

The employee claimed that his employer had a duty of care to take reasonable care against foreseeable risks of personal injury to him in the workplace, and a duty to, so far as reasonably practicable, provide and maintain a working environment in which the employee was not exposed to hazards.

The employee claimed that the employer breached these duties by failing to identify workplace hazards or assess the risk of injury or harm posed by any hazards identified.

Decision
The Court found that the employer was old-fashioned in how he ran his business and had relatively few formalities in terms of workplace risk identification and reduction.

The employer had a practice of only hiring experienced cattle transport drivers on the basis that they knew what was required of them and how to do the job.

The Court held that the employer did owe a duty of care to his employees, including in relation to the identification of risks.

In the circumstances of the employee’s injury, the Court found that the risk of harm was patently obvious to drivers, including the employee. But nonetheless, it was the employer’s duty to instruct employees to carry out their work safely and not enter trailers with stubborn bulls. The Court said,

The defendant expected his experienced employees to know what to do. He particularly expected the plaintiff to know what to do. It may be that the defendant thought that it was presumptuous for him to tell the plaintiff how the job should be done or how it should not be done. It was however his duty as an employer to give his employees, including the plaintiff, appropriate directions to carry out their work safely. His failure to do so here, by forbidding employees to enter pens in the circumstances described above was, I find, a breach of that duty. [at paragraph 156]

For his part, the employer claimed that the employee was aware of the risks but failed to utilise an alternative, safer method of moving a stubborn animal which was known to him.

In this regard, the Court found that the employee’s conduct “fell below the standard of a driver acting reasonably for his safety in the circumstances”. Accordingly, the Court found that the employee’s own negligence contributed to the accident and his injuries.

The Court awarded the employee general damages, as well as compensation for past and future economic loss to be apportioned based on the basis of 80% liability to the employer and 20% to the employee.

Workers compensation and working from home

“Deputy President confirms worker killed when working from home died in the course of employment”

S L Hill and Associates Pty Ltd (de-registered) v Hill [2019] NSWWCCPD 37

Executive Summary
An appeal against an Arbitrator’s findings that the death of a work-from-home worker arose out of or in the course of employment and that the employment was a substantial contributing factor has been dismissed.

Background
The worker was employed by S L Hill and Associates Pty Ltd (the Appellant), a financial advisory firm which was operated by her de-facto husband from the couple’s home.

Tragically, the worker was found dead in her pyjamas in the bedroom, caused by injuries inflicted by her de-facto husband. The de-facto husband was diagnosed with schizophrenia and had paranoid beliefs about the business, which later incorporated delusions that the worker was conspiring against him in the business and that the worker had cheated on him.

The worker was last seen by her eldest son in her bedroom caring for her younger child at 7:30am in the morning. The evidence provided that the worker would work from all areas of the house, was required to take phone calls from as early as 7:30am and, particularly after the birth of her new baby, would stay in her pyjamas or comfortable clothes and work from her bed.

The worker’s two sons claimed workers compensation by way of lump sum death benefit. The matter had a history before the Workers Compensation Commission and was most recently remitted by Deputy President Keating to be re-determined by a different arbitrator.

In the re-determination proceedings, the Arbitrator determined that:

  • the worker suffered injury arising out of or in the course of her employment per section 4 of the Workers Compensation Act 1987 (NSW) (WC Act);
  • the worker was performing work-related duties at the time she was assaulted, or was on call and that there was a sufficient connection between the employment and death; and
  • the worker’s employment was a substantial contributing factor to the injury per section 9A of the WC Act.

Orders were made for lump sum compensation to be apportioned between the worker’s two sons.

The Appellant lodged an appeal against the Arbitrator’s decision, submitting that the Arbitrator had erred in determining that:

  1. the worker’s employment caused or materially contributed to the injury and that the worker’s death was an injury arising out of or in the course of her employment;
  2. the worker was performing work duties or was on call at the time of the injury and that the injury arose out of the course of her employment; and
  3. the worker’s employment was a substantial contributing factor to her injury and death.

In relation to (1), the Appellant submitted that the Arbitrator had erred in looking at the motive of the assault of the worker and submitted that the cause of the worker’s death was her de-facto husband’s mental illness which was not a part of her employment.

In relation to (2), the Appellant argued that the Arbitrator had erred in finding that the worker was engaged in work duties or that she was on call. The Appellant submitted that there was uncertainty about the time of the assault and death and what the worker was doing at this time. The Appellant submitted that the evidence provided that the worker usually commenced work at 9am, the office was on another floor in the house, the worker was still in her pyjamas, there was no evidence that work had been planned for that day or any work-related activity from her telephone and computer records. The Appellant also argued that there was no evidence that the worker was on call on the day or that there were fixed times where she would be “on call” – there were no contractual flexible arrangements and just because she had sometimes commenced work at 7:30am did not mean she was on call at that time.

In relation to (3), the Appellant submitted that the worker’s employment had little connection to her injury and death – rather the cause of her death was the worker’s personal relationship with her de-facto husband who suffered from schizophrenia and his paranoid delusions.

Decision
Deputy President Wood rejected each ground of appeal from the Appellant. She found that the Appellant had failed to demonstrate that the Arbitrator had fallen into error.

In relation to finding that the worker’s employment caused or contributed to the injury, DP Wood found that the Arbitrator was required to determine whether her employment caused or contributed to her injuries and from the authorities, the motive in the assault was a relevant consideration to be considered by the Arbitrator. The evidence was that the worker’s de-facto husband held beliefs about the way she was conducting her duties, had mistrusted her in relation to the business and that these matters were on his mind shortly before the assault. DP Wood held that the Arbitrator made a finding about the causal connection based on the evidence available before her.

DP Wood also found that Arbitrator had not fallen into error in finding that the worker was in the course of her employment or was on call when she was assaulted. The evidence was that the worker and the de-facto husband lived and worked in the same premises and that the worker had arranged her work around the needs of her baby.

DP Wood found that the Arbitrator reached her finding after considering what the worker usually did, what she would be expected to do in a family-run business and what she had done in the lead up to the assault. This evidence supported that the worker had commenced work or was required to be available for calls such that she was on call and in the course of her employment at the time of the assault.

Finally, DP Wood held that the Arbitrator had reached her finding that the worker’s employment was a substantial contributing factor to her injuries after applying the authorities and the factors in subsection 9A(2) of the WC Act. DP Wood noted that the Arbitrator’s findings were open to her on the evidence and no error had been established.

DP Wood dismissed the Appellant’s appeal and remitted the matter to the Arbitrator to determine the remaining issues.

What can your business learn from this decision?
While working from home arrangements may seem a convenient solution for employees, it is important for employers to remember that during those times that the employee is working, their home is actually a workplace and with that comes additional risks for the employer.

Where employers do allow employees who work from home, there should be an agreed designated area where work is performed, regular reviews of the work from home arrangement to ensure the employee is working as agreed and, routine work health and safety checks undertaken on behalf of the employer.

Multiple roles and overtime

“Court rejects employee’s claim for overtime based on “merged” jobs”

Kroeger v Mornington Peninsula Shire Council [2019] FCCA 2313

Executive Summary
The Federal Circuit Court has rejected an employee’s claim that she is entitled to unpaid overtime based on cumulative hours worked in two separate jobs for the same employer.

Background
The employee commenced employment with Mornington Peninsula Shire Council in 1994 as a casual Fitness Instructor. In this role, the employee was required to prepare and conduct fitness classes, advise patrons on health and fitness issues, create fitness programs and meet and greet class attendees.

In 2004, the employee accepted the role of permanent part-time Customer Service Offer with the same Council. This role was pursuant to a letter of offer which specifically stated that her “previous employment status as casual Group Fitness Instructor will now be an additional position”.

The employee’s duties as a Customer Service Officer included providing customer service, ensuring patrons were greeted and assisted upon entry, assisting with phone queries, opening and closing the Centre and providing administrative support.

The employee performed both roles until her employment ceased in October 2017.

The employee claimed that, from on or about May 2016, her roles became ‘merged’ or ‘intermingled’. In support of this claim, the employee gave evidence that she would perform both roles in the course of a day with no breaks, for example, she would perform customer service for a period, then immediately teach a fitness class, then return to customer service, and then immediately teach another fitness class before returning back to customer service. The employee also gave evidence that Council would sometimes pay her the rate of Fitness Instructor when performing customer service work, and vice versa.

Council rejected these claims and produced an expert analysis of the employee’s work patterns, which confirmed amongst other things:

  • the employee only spent 34% of her employment working both roles on the same day;
  • only 44% of those days in which she performed both roles were at one location; and
  • of those days in which she performed both roles at one location:
    • only on 34% of those days was she required to move between roles within 5 minutes of each other;
    • only on 39% of those days was she required to move between roles within 15 minutes of each other; and
    • only on 46% of those days was she required to move between roles within 30 minutes of each other.

The employee argued that the time recording system on which this analysis relied was inaccurate and should not be accepted.

Decision
The Court accepted the analysis of the data produced by Council, noting that the system was used to pay a whole range of employees at Council – not just this employee, and that the employee herself had utilised data from this system in support of her claim.

Overall, the Court was not satisfied that the two roles performed by the employee had merged. It accepted that there were days where the employee performed one job, quickly followed by the other job. However, it also found that she was performing each role separately and back-to-back. The Court also accepted that this only occurred on a minority of days.

The Court also rejected that any claim that both roles were performed at the same time, finding that the only evidence in support of this was that the employee would greet customers while taking a fitness class. The Court’s view was that this was insufficient to make out the claim noting that both jobs contemplated greeting customers.

These findings, in addition to the fact that there were separate contracts and each job had a separate principal purpose that was acknowledged by the employee, meant the employee’s claim failed.

What can your business learn from this decision?
This decision is consistent with an earlier decision of the Federal Circuit Court in Lacson v Australian Postal Corporation [2018] FCCA 511, in which an employee unsuccessfully claimed overtime for hours worked across two roles.

In this decision, the employer took all reasonable steps to ensure that the separate roles performed by the employee remained separate and distinct, including issuing separate employment contracts and expressly advising the employee that the roles remained separate, despite the fact that the roles were occasionally performed back-to-back. Employers should ensure that these basic steps are taken when hiring employees for multiple roles.

General protections and reason for adverse action

“Adverse action taken against employee dismissed for artificial reason”

Pezzimenti v Rotary International [2019] FCCA 1854

Executive Summary
An employer has failed to demonstrate that they did not dismiss an employee because he commenced adverse action proceedings, with the Federal Circuit Court finding that the reason for dismissing the employee was artificial.

Background
The employee was employed as International Officer Manager for Rotary International (the Employer).

In October 2016, the employee was placed on a Performance Improvement Plan (PIP) by his supervisor. The PIP identified four areas in which the employee’s performance was to improve. In December 2016, the employee lodged a bullying complaint against his supervisor to the General Secretary in relation to the PIP.

In a meeting in February 2017, the supervisor confirmed to the employee that there was only one aspect of the PIP which was outstanding and that the employee had satisfactorily met the other deliverables. However, in April 2017, the supervisor advised the employee that he had failed to achieve three of the deliverables in the PIP and he could not assess his progress against the other deliverable and the employee was asked to leave the meeting.

The employee subsequently made a claim alleging adverse action not involving dismissal. During the progress of court proceedings for that claim, the employee was issued with a show cause letter which required him to respond to the allegations against him. After the employee did not attend a meeting to provide his responses, his employment was terminated on 30 June 2017 for:

  • breaching his obligation of confidence by emailing the Regional Director;
  • failing to ensure the accuracy of leave records;
  • being absent from work without proper authorisation; and
  • failing to meet the requirements of the PIP within the specified time frame.

As a result of the employee’s dismissal, the employee’s claim was amended to a claim involving dismissal. The employee now alleged that the Employer took adverse action against him by:

  1. terminating his employment because he exercised a workplace right in relation to his employment to make a complaint to the General Secretary about his supervisor about the PIP;
  2. altering his position to his prejudice by requiring him to respond to a show cause meeting in the same week his evidence in the proceedings was due, and terminating his employment for failing to respond to the show cause letter because he exercised a workplace right to commence proceedings; and
  3. terminating his employment and altering his employment to his prejudice because he exercised a workplace right to prosecute his case.

In short, the employee alleged that the Employer’s conduct in show causing him and terminating his employment was “tactical manoeuvring” in order to improve its position in the court proceedings.

The relevant issue to be determined was whether the Employer’s purported reasons for dismissing the employee were the real reasons for his dismissal.

The Employer argued that the employee failed to comply with a reasonable direction requiring him to attend a meeting to provide reasons regarding his conduct. The evidence of the supervisor, who was one of the decision-makers in the dismissal, was that he decided to dismiss the employee because of his disobedience and not for any unlawful reason.

With respect to the allegations of adverse action, the Employer submitted that:

  • the PIP was initiated before the employee lodged a complaint, the employee did not satisfactorily complete the PIP and any threats about the dismissal of his employment were due to this unsatisfactory performance and not because of his workplace complaint;
  • the employee was obliged to comply with its reasonable direction to attend a meeting and provide responses. It argued that the employee had time to prepare his evidence, could have applied to change the due date for the evidence, and that the due date for the evidence was not caused by any conduct of the Employer; and
  • any adverse action taken against the employee in dismissing him from his employment was not for an unlawful reason.

Decision
The Court noted that under section 361 of the Fair Work Act 2009 (Cth) (FW Act), the presumption is that action was taken for a prohibited reason unless it can be proved otherwise. The Court found that the Employer had not discharged its onus in rebutting this presumption.

The Court found that the employee’s supervisor had changed his view toward the employee after the employee commenced the proceedings. The Court held that supervisor’s evidence did not persuade it that this change was due for any other reason than because the employee had commenced proceedings. The Court noted that while the Employer had concerns about the employee’s performance and that the PIP was initially justifiable, following the commencement of the proceedings, the goalposts for the PIP had changed such that the employee had been “set up to fail”.

The Court found that the Employer “went looking” for additional reasons to dismiss the employee and had alleged that the employee had breached confidence. For the Court, this allegation had “the air of artificiality to it”. Similarly, for the Court, issues relating to the employee’s leave were “a storm in a tea cup” which could be explained by the Employer’s leave records.

The Court found that the Employer took adverse action by dismissing the employee for a prohibited reason. The Employer was ordered to pay the employee damages in the amount of $205,342, being 12 months of the employee’s pay.

What can your business learn from this decision?
The general protections provisions under the FW Act presume that action was taken for a prohibited reason unless it is proved that it was not taken for that reason. The onus is on the decision-maker as the person who took the action to rebut this presumption and establish that the adverse action was not taken against an employee for a prohibited reason. The direct evidence of the decision-maker will be the most relevant in rebutting the presumption.

There are significant consequences for breaches of the general protections provisions. As a civil remedy provision, penalties apply for contraventions and the courts may make pecuniary penalty orders or any order it considers appropriate, such as in this case, compensation for the income the employee would have received had their employment not been terminated.

 

Should you require any further information or assistance, please contact our Director Shane Koelmeyer on (02) 9256 7500 or via email on sydney@workplacelaw.com.au.

Information provided in this update is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this update, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.