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Excerpts from this article first published in ‘Human Resources’ Magazine, Issue 92, 1 November 2005
The importance of giving adequate instructions, even for an apparently simple task, has been emphasised by a finding by the High Court that an employer was negligent in instructing an employee to “give it a go”.
In Laybutt v Glover Gibbs Pty Ltd, the employee had been employed for about 6 weeks as a pastry cook for a bakery when her team leader told her to reassemble a doughnut machine. This involved fitting smaller cylinders into larger ones. She had seen other employees do this, but had not had the opportunity to note how it was done. The employee said that she didn’t know how to perform the task. The team leader then told her to “just give it a go”. No further instruction was given and no demonstration, manual, supervision or gloves were provided.
The employee then gave it a go, suffering injury to her finger and arm in attempting to reassemble the machine.
The employer, Glover Gibbs Pty Ltd, was found to be negligent by a jury in the NSW District Court. The employee was awarded substantial damages.
In a successful appeal by the employer, the NSW Court of Appeal found that the reassembly process was “a very simple process indeed and one that any person of ordinary intelligence could perform”. The Court held that a central difficulty for the employee was demonstrating what instructions should have been given and whether these would have prevented the accident. The Court held that the District Court Judge should have directed the jury to find in favour of the employer.
The employee successfully appealed to the High Court. The Court found that the evidence of a plain request for instructions and unfamiliarity with a task met the NSW Court of Appeal’s criticism that there was not enough evidence that the employer needed to give instructions. This evidence also demonstrated that the employee would have followed the instructions, had they been given. The Court held “That a person expressly sought instructions is indicative of a real disposition to follow them if they were given. Such a request will often be more persuasive than an assertion, after the event, that the plaintiff would or would not have taken a particular course if he or she had known a certain fact or facts.” The Court accepted that the instruction to “give it a go” was negligent, finding that: “The denial of instructions specifically sought may constitute no less a failure on the part of an employer whose duty it is to provide a safe system of work than a failure to act on a complaint about a defective system by an employee.”
HR Tips:
Richard Taylor
Senior Associate
Australian Business Lawyers
