A recent decision in South Australia highlights what is required in the process of, and weighing up or balancing, the various elements in determining what is 'reasonably practicable' being the measures taken to ensure compliance by a PCBU in the event of bullying behaviour by workers.
The case demonstrates the importance for PCBU's to implement a process for aligning policies on behaviour and conduct, particularly bullying, which have an interface with WHS duties and disseminating the information and instruction, through training and supervision.
Facts
An apprentice of an electrical contracting company was exposed to risks to his health and safety from bullying behaviour by another worker and his supervisor. He narrowly avoided serious burns when sprayed with a flammable liquid and set alight by those individuals in the crib room, whilst having a lunch break.
Despite pleading with the supervisor and other worker not to ignite the flammable liquid the supervisor and other worker did so. In entering a plea of guilty, the supervisor described his conduct as "brain fade". The prosecutor charged the PCBU, supervisor and the worker with reckless conduct, a category 1 offence. This is the first reported decision of a supervisor being successfully convicted of a category 1 offence. The supervisor was convicted and fined $12,000 after a 40% discount for early plea (from a maximum penalty of $300,000 and/or 5 years imprisonment). The PCBU and the other worker are yet to face the court.
Takeaway
It is important to remember that a contravention of the safety legislation arises where there is a risk to health and safety. It is not necessary that there is a particular incident or that a person is actually injured to establish a breach of duty. What is required is the creation of a risk. A risk is the risk, it either exists, or it does not. The hazard was the conduct and behaviour of the supervisor and other worker in spraying the apprentice with flammable liquid. A prank, practical joke, or initiation process is not a rite of passage into the workplace. Conceivably, there will always be an element of risk in such behaviour and a contravention of the respective safety legislation.
The case demonstrates the importance for PCBU's to implement a process for aligning policies on behaviour and conduct, particularly bullying, which have an interface with WHS duties and disseminating the information and instruction, through training and supervision.
Ideally this should be covered at the induction and thereafter in training modules and followed up through Toolbox talks, pre-start meetings, and noted in WHS committee meeting minutes.
If you would like to discuss this matter or review compliance requirements, please do not hesitate to contact us.
John Rodney
Special Counsel
K & L Gates
+61 2 9513 2313
john.rodney@klgates.com
Contact
K&L Gates has an extensive full service offering in work health and safety across Australia. If you would like to discuss these cases and implications for you and your business further, please contact us.
John Makris
Partner
+61 2 9513 2564
john.makris@klgates.com
