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Excerpt from this article first published in Human Resources Magazine, Issue 148 - 18 March 2008
A case in the South Australian Magistrates Court is a reminder to all employers of the need to be vigilant in meeting their duty of care to all persons in their workplaces.
Australian Fishing Enterprises (AFE) operated a fishing business. A work experience student sustained injuries to his hand when it was caught between ropes onboard a boat. The student was a ‘deemed’ employee under South Australia’s OHS legislation, even though his services were voluntary. Due to an unfortunate mix-up, the student did not receive an induction. He did not receive the standard onshore induction for new employees as he missed the boat departure time, relying on the start time for the previous day.
The crew were already at work when the student arrived on board (at sea), and there was no opportunity for the boat’s captain to conduct a proper induction or training, at sea, at that time. The captain asked the student to “stand back and observe” but did not enforce this direction or assign a supervisor to the student. The student did not follow the instruction to “stand back and observe” and sustained his injuries when, in his enthusiasm, he sought to untie ropes before a deckhand had the opportunity to show him how to do so safely.
AFE was alleged to have breached its duty by failing to ensure that its employee was “safe from injury and risks to health”. AFE argued that it had policies in place and relied on the chain of events set out above. It said that it was never intended that the student undertake the task without being properly instructed.
The Court found that although AFE took its OH&S responsibilities seriously and had sufficient policies and procedures, the Company failed to observe its own policies and provide proper supervision. It convicted and fined the Company.
Employers must ensure that safety procedures are followed; persons new to the workplace receive appropriate instruction and training; and adequate supervision and control is provided at all times, particularly when an employee is inexperienced or there are volunteers, work experience students and other persons in the workplace. An employer’s obligations are not lessened because of the inadvertent or careless conduct of an employee
Richard Taylor
Special Counsel
